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Albrechta: Federal courts split on sexual orientation discrimination

David Albrechta

On Feb. 26, a federal appeals court in New York ruled that protections for workers under Title VII of the 1964 Civil Rights Act extend to those discriminated against based on their sexual orientation. This is the second federal appeals court to make this ruling within the last year.

Other federal appeals courts, including the 10th Circuit Court of Appeals, which handles cases arising out of Colorado, have found that discrimination under Title VII does not extend to discriminatory acts based on an individual’s sexual orientation. As such, the federal appeals courts are split on this question, and the divide deepened with this latest ruling.

The case decided last week was brought by Mr. Zarda, a former skydiving instructor on Long Island. Zarda’s employment was terminated after he informed a female client that he was gay to make her feel more comfortable about being strapped to him during a sky dive. The client’s boyfriend complained to the company, and the company then terminated Zarda’s employment. Zarda alleged that he was fired from his job for failing to conform to the “straight male macho stereotype.” After the case was filed, Zarda died in a base-jumping accident. Zarda’s estate has continued the lawsuit.

Title VII prohibits employers from terminating, failing to hire, retaliating against or generally discriminating against any employee because of an individual’s race, color, religion, sex or national origin. The question in Zarda’s case is whether terminating an employee because of his sexual orientation is an employment decision made based on “sex” as defined under Title VII.

The court in Zarda’s case ultimately found that Title VII prohibits discrimination on the basis of sexual orientation. This decision also has a political element.

Under President Barack Obama, the Equal Employment Opportunity Commission issued a ruling, in a different matter, finding for the first time that an action based on a person’s sexual orientation is inherently a sex-based consideration and ought to be protected by Title VII.

Under President Donald Trump, the Department of Justice filed an amicus (friend of the court) brief in Zarda’s appeal. The Justice Department argued that Title VII protections do not extend to sexual orientation, stating that the EEOC was “not speaking for the United States” in its earlier finding.

Unlike Title VII, the Colorado Anti-Discrimination Act explicitly prohibits discrimination against an individual because of their sexual orientation. So, while LGBTQ employees in Colorado are not protected against discrimination in the workplace because of sex under Title VII, they are protected against such discrimination under CADA.

This distinction can be significant because, for discrimination based on any protected class other than sexual orientation, the plaintiff may choose between state and federal court. Depending on the circumstances, one court may be more favorable to the plaintiff than the other court.

This is not the last time we will hear of this divide in the federal courts of appeals.

An appeal to the U.S. Supreme Court on this issue is likely in the near future. One such appeal was already brought, but the U.S. Supreme Court declined to hear arguments in that case.

As more appellate courts extend the protections of Title VII, the U.S. Supreme Court will not be able to ignore the issue much longer. Until then, LGBTQ employees in Colorado who feel they have been discriminated against on the basis of their sexual orientation will have a right of action only in Colorado state court.

That same right will not exist in federal court for Colorado employees unless the 10th Circuit Court of Appeals or the U.S. Supreme Court rules to extend Title VII protections to workers who have been discriminated against based on sexual orientation.

David Albrechta, esq. is a partner in Albrechta & Albrechta, LLC. Reach him at david@albrechtalaw.com.

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