2d Circuit Issues Major En Banc Decision Holding Sexual Orientation Protected Under Title VII

Zarda v. Altitude Express, Inc., ___F.3d___(2d Cir. Feb. 26, 3018) (en banc), is a major decision that is undoubtedly on its way to the U.S. Supreme Court. The Second Circuit issued a 163 page decision with 8 separate opinions. The court ruled 9-3 that homosexuality or sexual orientation is protected under Title VII.  The court overruled Simonton v. Runyon, 232 F. 3d 33 (2d Cir. 2000) and largely adopted the EEOC's position as set forth in Baldwin v. Foxx, 2015 WL 4397641 (July 15, 2015).

What I found most interesting about the case was Chief Judge Katzmann's majority opinion where after recognizing that sexual orientation claims were consistently not cognizable under Title VII, he stated that "legal doctrine evolves..." (Slip Op. at 8). Nevermind that the statute simply uses the phrase "because of sex" and efforts to amend Title VII to include sexual orientation have failed. That of course, was the point of the dissent.

This decision, as you may expect, has generated substantial press coverage.

https://slate.com/news-and-politics/2018/02/second-circuit-rules-title-vii-bars-anti-gay-discrimination-in-zarda.html

https://www.reuters.com/article/legal-us-otc-titlevii/2nd-circuit-demolishes-key-doj-argument-against-workplace-protection-for-gays-idUSKCN1GA2OY

https://www.natlawreview.com/article/title-vii-bars-sexual-orientation-discrimination-says-us-second-circuit-court

I suspect such coverage will continue.

The real question is what will the Supreme Court do? My personal belief is that they have to take this case and that the Court for once and for all will recognize that sexual orientation is protected under Title VII. No matter how conservative the Court is, they recently recognized the constitutional right of homosexuals to marry. Obergefell v. Hodges, 135 S. Ct. 2584 (2015). In my view, it would be entirely illogical to believe that once married, an employer can terminate that employee for being gay.

Yes, I know Obergefell was decided on constitutional grounds and Title VII is a federal statute, so Obergefell will not technically be controlling, but come on?

For you law students out there, this case involves the classic issue about the role of judges in our society and what does "interpret the law mean?" Conservatives will stick to the exact language of the statute and examine what Congress intended in 1964 when they wrote the phrase "because of sex." Liberals recognize that legal doctrine, as Senior Judge Katzmann stated, "evolves" over time based upon the mores of society.

Before you jump into one camp or the other, consider another controversial issue-guns. Should the Second Amendment be interpreted conservatively only refer to the type of "arms" that existed in 1787 or should the right to bear arms include modern day weapons involving assault rifles? 

I also suspect the outcome of any Supreme Court case may also hing on whether President Trump gets another Supreme Court appointment and which Justice, if any, retirees. President Trump's Justice Department argued against protecting homosexuals from discrimination under Title VII. They lost big.

What do you think?

Mitchell Rubinstein