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1 1 (November 1, 2017)

handle is hein.crs/govcizy0001 and id is 1 raw text is: ~* or 101 ' Researh Service Federal Agencies Disagree Whether Sexual Orientation Discrimination Is Prohibited by Title VII November 1, 2017 If an employer fires an employee because of sexual orientation, is that a form of unlawful discrimination because of sex under Title VII of the Civil Rights Act? After hearing oral argument on September 26, 2017, in Zarda v. Altitude Express, Inc., the U.S. Court of Appeals for the Second Circuit (Second Circuit), sitting en banc, is poised to address this significant legal question against a backdrop of conflicting views from federal courts of appeals and two federal agencies. While Title VII makes it unlawful to discriminate because of such individual's race, color, religion, sex, or national origin, its statutory text does not expressly address sexual orientation. In Zarda, the plaintiff argued that Altitude Express violated Title VII when it fired Donald Zarda because of his sexual orientation, after he told a client he was gay. His former employer responded that it fired him because of various complaints by a client. A panel of the Second Circuit held that Zarda's Title VII claim was foreclosed by earlier circuit precedent concluding that Title VII does not prohibit sexual orientation discrimination. The panel noted in its decision, however, that though a three-judge panel lacked the authority to overturn circuit precedent, the entire court sitting en bane could revisit it. Subsequently, the Second Circuit agreed to rehear the case en banc. The Second Circuit's forthcoming en banc decision follows two conflicting decisions issued by the Eleventh and Seventh Circuits earlier this year on the same issue. In March, the Eleventh Circuit, in Evans v. Georgia Regional Hospital, held that Title VII does not prohibit discrimination based on sexual orientation (and subsequently denied a petition seeking rehearing en banc of that panel decision). In April, the Seventh Circuit, sitting en banc, came to the opposite conclusion and held in Hivel v. [vy 'fech Community CoiesZe of fndian that Title VII does protect against sexual orientation discrimination. The Second Circuit also addresses the issue in light of opposing views offered by the Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ), both of which filed amicus curiae briefs in Zarda. Though the EEOC and DOJ share responsibility for enforcing Title VII (the EEOC against private employers, DOJ against public sector employers, pursuant to 42 U.S&.C 2000e-5(f)(1)), the two agencies offered directly competing interpretations of the statute. Congressional Research Service https://crsreports.congress.gov LSB10021 CF'S NStGHT Prepai-ed for Mernbei-s and Com mninttees 4 o. C- --q .. . . . . . . . ...-----------------------------------------------------------------------------------------------------------------------------------------------------------------------

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