Tuesday, February 27, 2018

2nd Circuit holds that Title VII expressly bars sexual orientation discrimination as sex discrimination


Photo by Matias Rengel on Unsplash
Yesterday, the 2nd Circuit federal court of appeals (which covers New York, Connecticut, and Vermont) held that “Title VII prohibits discrimination on the basis of sexual orientation as discrimination ‘because of … sex.’”

With its decision in Zarda v. Altitude Express [pdf], the 2nd Circuit joins the 7th Circuit, and the EEOC in interpreting Title VII as such.

My thoughts on this issue are well documented throughout the archives.

Yet, this issue is far from settled.

There is no federal mandate on the issue, as Congress has refused to act to amend Title VII to clarify the issue, and other federal circuits disagree with the 2nd and 7th. Also, there are still 29 states that do not express prohibit LGBT discrimination under their civil rights laws.

Ohio aims to take itself off that dubious list. H.B. 160 (the Ohio Fairness Act) would extend Ohio’s workplace discrimination protections to sexual orientation and gender identity or expression. It’s also supported by the Ohio Chamber of Commerce:
In advancing Ohio’s business climate, the Ohio Camber recognizes the value and power of diversity. We believe that employees deserve robust protections from discrimination and that discrimination of any type has no place in the workplace. Everyone deserves the right to do their job without fear of being discriminated against and every person, regardless of their race, color, religion, sex, military status, national origin, disability, age, ancestry, sexual orientation, or gender identity, deserves equal opportunity and equal protection under the law.

As I applaud the 2nd Circuit for its decision in Zarda, I hope I will soon be able to similarly applaud Ohio’s legislature and Governor Kasich after H.B. 160 become law. All the while, I wait for the day when we finally have national uniformity on this important civil rights issue.

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