David C. Miller, partner with Bryant Miller Oliver.
David C. Miller, partner with Bryant Miller Oliver. (Courtesy photo)

The tide has undeniably been rising in recent years to give legally protected status to sexual orientation, gender identification and a galaxy of related concepts called LGBTQ rights. The Trump administration may be trying to turn that tide, or at least hold it back a little.

On July 26, the Department of Justice filed an amicus brief in Zarda v. Altitude Express, in which it took the position that Title VII of the Civil Rights Act does not cover sexual orientation. This is at odds with the position taken by the federal government under President Obama — a position still officially held by the Equal Employment Opportunity Commission.

Title VII is the best-known federal law prohibiting discrimination in employment. It expressly prohibits discrimination based on race, color, religion, sex or national origin. It does not mention “sexual orientation.” For years, courts have routinely dismissed Title VII lawsuits attempting to claim that “sex” includes “sexual orientation.”

In April, the U.S. Court of Appeals for the Seventh Circuit became the first federal appellate court to endorse that view in Hively v. Ivy Tech, an en banc decision reversing a grant of a motion to dismiss. Every other circuit court that has considered the question has ruled the other way.

In March, the Eleventh Circuit, which has jurisdiction over federal cases originating in Florida, Georgia and Alabama, reaffirmed its controlling precedent that Title VII does not encompass sexual orientation, in Evans v. Georgia Regional Hospital.

However, judges on a panel of the Second Circuit, in a March sexual orientation Title VII case, invited the full circuit to re-examine its precedent that Title VII did not protect sexual orientation, even though they ruled they were bound to follow that precedent and uphold dismissal of the case, in Christiansen v. Omnicon Group.

The Second Circuit accepted that invitation in Zarda, and that is where Trump’s Department of Justice has joined the party. The EEOC had already filed an amicus brief on the opposite side, creating the ironic spectacle of the federal government fighting with itself.

Supreme Court Bound

There is no argument that the plain language of Title VII does not include sexual orientation. The reasoning in favor of sexual orientation protection depends instead on a line of cases going back to two decades-old Supreme Court cases: Price Waterhouse v. Hopkins in 1989 and Oncale v. Sundowner Offshore Services in 1998. In both of those cases, the Supreme Court held that discrimination based on sex stereotyping was discrimination based on sex and, therefore, prohibited by Title VII.

Sex stereotyping is the expectation that a person will conform his or her appearance, dress, behavior and the like to what another person believes is normal for that sex. If an employer takes action against an employee because he or she does not conform to the employer’s preferred norm, then the employer may have violated Title VII.

The plaintiffs in Hively and Zarda have built arguments based on this reasoning and not, as some might think, on an assertion that sexual orientation equates to gender.

The Justice brief argues, among other things, that there is clear congressional intent to exclude sexual orientation from Title VII. It points out that bills to add sexual orientation protection to Title VII have been rejected by every Congress since 1974, including in 1991, when Title VII was amended.

It also points out that the Supreme Court requires a sex-based Title VII claim to show that the action would not have occurred “but for” the person’s sex. It states that an employer that discriminates solely on the basis of sexual orientation treats gay men and women one way and heterosexual men and women another. Thus, the distinction does not differentiate between the sexes and fails the “but for” test.

At bottom, Zarda is merely a preview and a warm-up. There is now a circuit split; whether it’s Zarda or some other case, this one’s going to the Supreme Court.

And whether the LGBTQ tide is still rising or will begin to ebb may well depend on who’s behind the bench when this boat reaches the dock.