A New Use for Title VII Among Circuit Courts
Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of race, color, religion, sex, and national origin. Some recent circuit court decisions have held that Title VII’s reference to “sex” includes sexual orientation and transgender status. Since Title VII applies to all employers with 15 or more employees, these decisions could have a far-reaching impact on public and private schools, colleges and universities, day and overnight camps, and many other employers.
In Zarda v. Altitude Express, a case in which a gay skydiving instructor alleged that he was fired because of his sexual orientation, the court held: “Title VII prohibits discrimination on the basis of sexual orientation as discrimination ‘because of sex.’ To the extent that our prior precedents held otherwise, they are overruled.” 855 F.3d 100, 107 (2d. Cir. 2018).
In another 2018 case, in which a funeral home fired an employee who was transitioning from male to female, the court held: “Because an employer cannot discriminate against an employee for being transgender without considering that employee’s biological sex, discrimination on the basis of transgender status necessarily entails discrimination on the basis of sex—no matter what sex the employee was born or wishes to be.” E.E.O.C. v. R.G. & G.R. Harris Funeral Home, 884 F.3d 560 (6th Cir. 2018).
Title VII applies to teachers and staff. Do these protections extend to students?
Title IX of the Education Amendments Act of 1972 protects students from sex discrimination by any educational program that receives federal funding. “Because case law interpreting Title VII guides courts in evaluating Title IX claims, schools should be aware . . . that courts in these circuits will likely view Title IX’s prohibition against discrimination on the basis of ‘sex’ to include sexual orientation [and gender identity]." See Tina Sciocchetti, et al., Higher Education Should Note Recent Title VII Rulings, Law 360 (2018), Law 360.
A significant footnote is that these circuit court holdings conflict with the current views of the U.S. Departments of Justice and Education, both of which take the position that Title IX protections don’t apply to discrimination on the basis of sexual orientation or gender identity.
In February 2017, both agencies issued a “Dear Colleague” letter withdrawing the Obama administration’s policy and guidance interpreting Title IX to bar discrimination on the basis of a student’s gender identity (specifically, regarding access to sex-segregated facilities based on gender identity). Additionally, the January 2001 Title IX guidance to which the DOE reverted back in its September 2017, Dear Colleague letter, specifies that “Title IX does not prohibit discrimination on the basis of sexual orientation.” The department’s Office of Civil Rights is no longer taking discrimination cases based on sexual orientation.
See id.
What are the limitations of these decisions? What does state law say?
While the decisions are certainly instructive, other recent circuit courts have created contrary precedent. The Eleventh Circuit recently held that discrimination based on sexual orientation is not actionable under Title VII. Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017).
Likewise, in April of 2019, the Fifth Circuit held the same way when a worker alleged she was fired for being heterosexual after posting a Facebook comment that was disparaging to the transgender community. See O'Daniel v. Industrial Service Solutions, No. 18-30136 (5th Cir. filed April 19, 2019). The court refused to hold that the lower court erred "in finding that Title VII does not protect against discrimination on the basis of sexual orientation." Id.
State Laws and the Circuit Split
Many states have their own, stricter laws protecting discrimination on the basis of LGBT status. These state laws go above and beyond any potential federal protection. See Know Your Rights: Transgender People and the Law, ACLU.
Going forward, it will be interesting to see how other circuits wrestle with these questions and whether the Supreme Court steps in to resolve the split among the circuits. We might also assume that an eventually change in administration will lead to updated "Dear Colleague" letters from the U.S. Departments of Justice and Education.
Update: As of Monday, April 22, 2019, the Supreme Court agreed to hear three cases (including Zarda and R.G. and G.R. Funeral Homes) about whether gay and transgender employees are protected under Title VII.