The entire 2nd Circuit Court of Appeals will consider Tuesday whether Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation.
This is the first time a full appellate court has heard arguments on this topic since the 7th Circuit ruled in an 8-3 decision in April that the Act’s ban on discrimination because of sex extends to sexual orientation. That case was Hively v. Ivy Tech, 15-1720.
The 2nd Circuit case, Zarda v. Altitude Express, 15-3775, makes a similar claim that Donald Zarda was fired from his job as a skydiving instructor because he was gay, in violation of Title VII. Zarda filed his lawsuit in 2010. He died in a base jumping accident in 2014 and his estate is continuing the lawsuit.
The en banc hearing has attracted a great deal of attention. The U.S. Department of Justice filed an amicus brief, arguing the issue of what Title VII covers is for Congress, not the courts, to decide. Also, a total of six attorneys are scheduled to argue, three on each side.
However, before the 2nd Circuit judges even hear the arguments, the dispute over Title VII protections has landed at the Supreme Court of the United States. Lambda Legal Defense and Education Fund Inc. filed a petition for writ of certiorari asking the nine justices to review the Title VII case from the 11th Circuit, Jameka Evans v. Georgia Regional Hospital, et al., 850 F.3d 1248 (2017).
Attorney Gregory Nevins, workplace fairness program strategist for Lambda Legal, said the writ was filed because regardless of the 2nd Circuit’s en banc ruling, a split exists between the circuit courts and federal agencies.
The 7th Circuit overrode its own precedent in finding that Kimberly Hively, formerly an adjunct math instructor at Ivy Tech Community College in South Bend, could proceed with her civil rights complaint against the college. She claimed Ivy Tech violated Title VII when it denied her promotions and did not renew her contract because she is a lesbian.
Led by Chief Judge Diane Wood, the 7th Circuit majority ruled that discrimination on the basis of sexual orientation is a form of sex discrimination, which is banned by Title VII. Conversely, the 11th Circuit denied a petition for an en banc hearing after a panel issued a 2-to-1 decision that Title VII does not cover sexual orientation discrimination.
The split within the federal government comes between the Equal Employment Opportunity Commission and the Department of Justice. Both agencies are empowered to enforce Title VII but they are so divided as to how far the protections extend that at Tuesday’s hearing in the 2nd Circuit, an EEOC attorney will be arguing that the Civil Rights Act does include sexual orientation while an attorney from the Justice Department will be arguing the opposite.
Nevins also sees an opportunity for the U.S. Supreme Court to settle the issue favorably for gays and lesbians now that Associate Justice Neil Gorsuch has taken his seat on the bench.
The Lambda Legal attorney noted Gorsuch, an acolyte of the late Associate Justice Antonin Scalia, should follow his mentor’s belief that judges should stick to the language of the statute. Scalia’s majority opinion in Oncale v. Sundowner Offshore Services, Inc., et al., 523 U.S. 75 (1998), which Lambda Legal cites as a supporting case, advocates for looking at what the law says rather than trying to determine what Congress was thinking when it passed the legislation.
“…it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed,” Scalia wrote in Oncale which found Title VII does prohibit same-sex sexual harassment.
The Zarda oral arguments are scheduled to begin at 2 p.m. Each side will have a total of 30 minutes to present their cases.