Nonprofit Employers: Does Title VII Cover Sexual Orientation? On This, the Federal Government Disagrees—With Itself

3 min

Does Title VII of the federal Civil Rights Act of 1964 (Title VII) prohibit employment discrimination based on sexual orientation? Some federal courts have said "no," some "yes"; in 2015, the federal Equal Employment Opportunity Commission (EEOC) said "yes"; and last week, the U.S. Department of Justice (DOJ) said "no." What does all of this mean for nonprofit employers?

Some courts say claims for sexual orientation discrimination could be cognizable as a kind of stereotyping based on sex. But in 2000, the Second Circuit ruled that Title VII’s prohibition against discrimination "because of … sex" does not include sexual orientation, noting that Congress had refused to expand Title VII in that way. However, in 2015, the EEOC issued an administrative decision in Baldwin v. Foxx that Title VII does include sexual orientation. Several district courts then reached a similar conclusion, and in April 2017, the Seventh Circuit followed suit in Hively v. Ivy Tech Comm. College of Indiana.

Now Zarda v. Altitude Express, Inc. raises the issue again. Zarda was a professional skydiving instructor who was fired from his job after he told a female customer that he was gay. Zarda routinely told his female customers this because he is strapped tightly to them during the tandem skydive and did not want them to feel uncomfortable. He sued under both Title VII and the Sexual Orientation Non-Discrimination Act of New York (SONDA). He lost his Title VII claim on summary judgment and his SONDA claim before the jury.

After Zarda lost his first appeal, the Second Circuit agreed to reconsider his case and its position regarding Title VII and sexual orientation. The EEOC and the DOJ filed "friend of the court" briefs—taking conflicting positions.

The EEOC contended that sexual orientation discrimination necessarily involves considering the sex of the employee and sex-based stereotypes. The argument is that firing a man for dating a man, when you would not fire a woman for dating a man, is sex discrimination.

The DOJ argued that Title VII covers only the differing treatment of one sex as opposed to the other (i.e., when women are treated differently from men). The DOJ noted that when employers treat homosexual employees differently from heterosexual employees, they generally treat gay men and lesbian women in similar ways. Thus, DOJ argues, the employer would not be treating employees differently because of their sex, but because of who they love.

Neither the DOJ nor the EEOC has the authority to say what the law is—that is the province of the courts (or perhaps, ultimately, Congress). Nonetheless, their divergent interpretations of Title VII are notable. While the EEOC enforces discrimination law against nonprofits and other private employers, the DOJ prosecutes and the EEOC administers claims of employment discrimination against state and local governments (the DOJ also is responsible for housing discrimination). Thus, they have conflicting interpretations of a law that they share overlapping responsibilities to enforce.

The DOJ's brief, coupled with the same-day announcement that President Trump would ban transgender individuals from serving in the military in any capacity (whether by coincidence or otherwise), signals a shift under the Trump administration. But if you are a nonprofit employer responding to pending charges before the EEOC, you can still expect the EEOC to treat an allegation of sexual orientation discrimination as a violation of Title VII.

Does Title VII of the federal Civil Rights Act of 1964 prohibit discrimination based on sexual orientation? Stay tuned—while keeping in mind that, Title VII aside, many states and localities have their own laws that specifically prohibit sexual orientation discrimination by nonprofits and other employers.