Fifteen Eighty Four

On February 26, 2018, the Second Circuit, sitting en banc, held that Altitude Express violated Title VII when it fired a sky diving instructor for saying he was “100% gay”. The firing was a classic case of “no good deed goes unpunished”. The instructor, Donald Zarda, was trying a reassure a skittish female customer that she needn’t worry about their being tightly strapped together during a tandem skydiving lesson. Her boyfriend complained and Altitude Express fired Zarda.

In fairness to the dissenters in this case, it is hardly likely that Congress consciously intended this result when it passed Title VII, the landmark statute banning employment discrimination on the basis of sex, race, color, national origin, or religion. Nonetheless, the holding in Zarda v. Altitude Express is the logical extension of the direction in which courts have been interpreting Title VII over several decades. It has been the law for some time that Title VII protects employees from retaliation for failure to conform to gender stereotypes. For example, an employer can’t fire a female employee for being too “masculine” or a male employee for “effeminate” characteristics. It is perfectly reasonable for a court to hold that the expectation that Mr. Zarda would be attracted to women rather than men is just another gender stereotype.

With this decision, the momentum has swung decisively in favor of interpreting Title VII to prohibit sexual orientation discrimination as a form of gender discrimination. Not all courts agree, but the trend is in this direction. This is an even bigger deal than one might think. I would normally favor letting the democratic process work and would support the passage of the Employment Non-Discrimination Act (ENDA), which explicitly protects against sexual orientation discrimination in the work place, over stretching Title VII to do the same thing. However the pending Supreme Court case, Masterpiece Cake v. Colorado Civil Rights Commission puts a different spin on things. Should my worst fears come true and the Court holds that religious businesses have a constitutional right to discriminate on the basis of sexual orientation, Title VII is safer than ENDA or state protections for LGBT individuals. This is because the Court has never held that the government has a compelling interest in preventing sexual orientation discrimination. But in Roberts v. United States Jaycees, the Court held that the government has a compelling interest in eradicating gender discrimination.

If sexual orientation discrimination is a form of gender discrimination that means that the government has compelling interest in making such discrimination illegal. This is huge. In the famous Hobby Lobby case, in which the Supreme Court broadly interpreted the Religious Freedom Restoration Act, the majority brushed off concerns that they were empowering religious employees to discriminate on the basis of race. They wrote: “The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.” Since the government also has a compelling interest in eradicating gender discrimination, if sexual orientation discrimination is a type of gender discrimination, then the government has a compelling interest in protecting LGBT employees against discrimination. Therefore, we now have much stronger argument that protections for LGBT employees can survive a broad holding that religious employers have a right to discriminate against them. That is a big deal indeed.

Find out more about Evan Gerstmann’s related book, ‘Same-Sex Marriage and the Constitution’ here.