Share on Facebook
Share on Twitter
Share on LinkedIn

We previously wrote (see our post on the Hively decision, here) about the Seventh Circuit’s 2017 holding that the prohibition of sex discrimination in Title VII of the Civil Rights Act of 1964 (“Title VII”) also prohibits sexual orientation discrimination.  Two new cases further support an expansive definition of “sex” under Title VII, another prohibiting sexual orientation discrimination and one prohibiting transgender identity discrimination. See  Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. Feb. 26, 2018) and EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. Mar. 7, 2018).

The employee in Zarda was a skydiving instructor who claimed that his employment was terminated for telling a female customer that she should not worry about being strapped to him because he was “gay and ha[d] an ex-husband to prove it.” The court found the employee’s sexual orientation is protected by Title VII because sexual orientation discrimination is: (a) directly related to sex in that it involves treating a man who is attracted to men differently than a woman who is attracted to men; (b) based on sex stereotypes in that it assumes that a man should be attracted to women, and vice versa; and (c) associational discrimination in that it involves treating an employee differently based on the sex of the person(s) he associates with.  Consequently, the employee could proceed to trial on his claim of sex discrimination.   

The employee in Harris Funeral Homes was a biologically male funeral director who presented as male for the first six years of employment, but who informed the employer that she identified as female and would begin presenting that way in the workplace, and then was fired.  The Sixth Circuit held that the employee’s transgender/transitioning status fell under the umbrella of Title VII’s “sex” because it “is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.”  Of further interest in this case were the employer’s religious liberty defenses, which the Sixth Circuit rejected in ruling in favor of the employee.

These cases illustrate that although protecting such traits may not have been Congress’ original purpose in enacting Title VII, prohibitions in statutes “often go beyond the principal evil to cover reasonably comparable evils.”  See Zarda at *27 & Harris Funeral Home at *18.  Because the Second and Sixth Circuits’ interpretations of Title VII’s language and purpose are not shared by all federal circuit courts across the country (see Hively for further discussion of the circuit split), the Supreme Court may need to decide what “sex” actually means under Title VII.  Until that question is finally decided, however, employers should be aware that the term may be broader than anticipated.

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.  The choice of a lawyer is an important decision and should not be based sol