Title VII sexual orientation cases bubbling in federal courts

June 1, 2017

As the U.S. District Court for the Northern District of Indiana continues with its first case allowing a Title VII claim on the basis of sexual orientation, the 2nd Circuit Court of Appeals is preparing for an en banc rehearing to consider whether Title VII prohibitions include sexual orientation discrimination.

The New York-based federal appellate court is the second circuit to agree to have all the judges hear arguments about the extent of protections offered by Title VII of the Civil Rights Act of 1964. Following a similar en banc hearing, the 7th Circuit Court of Appeals in Chicago was the first to upended its own precedent in April 2017 with the majority finding discrimination because of sexual orientation is barred by the civil rights provision.

The 7th Circuit then remanded the case, Hively v. Ivy Tech, 15-1720, to the district court of Northern Indiana. Judge Jon DeGuilio and Magistrate Judge Michael Gotsch are assigned to the case.

Hively’s original pro se lawsuit claimed Ivy Tech denied her full-time employment and promotions because she is a lesbian. In its May 10 answer to the complaint, the community college denied it discriminated against the math teacher because of her sexual orientation and, in response to her allegation that she never received a negative evaluation, the school maintained Hively received varying feedback from several superiors during her time of employment.

Ivy Tech filed a status report with the court May 25. The college estimated discovery would take about seven months, after which it intends to file a motion for summary judgment. Also, it indicated it is open to mediation.

The 2nd Circuit has scheduled the rehearing in Zarda v. Altitude Express, Inc., 15-3775, for Sept. 26 at the Thurgood Marshall United States Courthouse in New York City. Inviting interested parties to file amicus briefs, the appellate court has set deadlines of June 26 for the plaintiff’s briefs and July 26 for the defendant’s briefs.

Donald Zarda, a skydiving instructor, filed a Title VII lawsuit after he was fired from Altitude Express, claiming he was dismissed because he was gay. Zarda has since died, but his relatives are continuing with the complaint.

The 2nd Circuit panel that initially heard Zarda’s case dismissed the complaint because precedent holds that Title VII does not cover sexual orientation. Zarda’s attorney, Gregory Antollino, then filed a petition for a rehearing en banc, which the appellate court granted on May 25.

The National Women’s Law Center along with several other advocacy groups has filed an amicus brief, asking the 2nd Circuit to find that sexual orientation discrimination does violate Title VII. Other nonprofits joining the brief include 9to5, National Association of Working Women; Gender Justice; the National Association of Women Lawyers; and the Women’s Law Project.

Also, the 2nd Circuit has invited the Equal Employment Opportunity Commission to brief and argue the case as amicus curiae.

The 11th Circuit Court of Appeals in Atlanta is still considering whether to convene an en banc rehearing for a Title VII sexual orientation case, Jameka Evans v. Georgia Regional Hospital, 15-15234. Initally, the panel rejected the claim by Evans that she was harassed and eventually fired because of her sexual orientation.

Lambda Legal, representing Evans, has since filed a petition for an en banc rehearing Marcy 31. “It is sex discrimination to discriminate against women, but not men, based on their romantic interest in women, for the simple reasons that such discrimination treats otherwise similarly-situated people differently solely because of their sex …,” the brief argued.

Four Democratic members of Congress – Sens. Tammy Baldwin of Wisconsin, Cory Booker of New Jersey, and Jeffrey Merkley of Oregon along with Rep. David Cicilline of Rhode Island – have filed an amicus curiae brief in support of the rehearing. Also, the American Civil Liberties Union and the National Employment Lawyers Association, Georgia and Florida chapters, are supporting an en banc hearing to extend Title VII protections to LGBT individuals.


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