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In this episode of The Proskauer Brief, senior counsel Harris Mufson and associate Laura Fant discuss the latest developments in Title VII. We will discuss the two recent circuit court decisions concerning the scope of sex discrimination under Title VII, one by the Second Circuit and the other by the Sixth Circuit. In addition, we will highlight some of the state and city statutory prohibitions that exist against sexual orientation discrimination throughout the country.

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Harris Mufson: Hello, welcome to The Proskauer Brief, Hot Topics on Labor and Employment Law.  I’m Harris Mufson. On today’s episode, I’m joined by Laura Fant, and we’re going to discuss recent developments in Title VII. So Laura, there have been two recent circuit court decisions concerning the scope of sex discrimination under Title VII, one by the Second Circuit and the other by the Sixth Circuit. Let’s talk about the first case, the Second Circuit decision, in the Zarda case.  Can you describe what happened in that case and what the Second Circuit held?

Laura Fant: Sure, so the Second Circuit’s case involved a gay male skydiving instructor who brought a sex discrimination claim under Title VII against his former employer, arguing essentially that his termination was based on his failure to conform to male sex stereotypes.

The case went up before the full Second Circuit, and the Second Circuit found that the most natural reading of Title VII sex discrimination prohibitions is that it has to extend to sexual orientation discrimination, effectively because sex is necessarily a factor in sexual orientation.  The court essentially said that because sexual orientation refers to a person’s predisposition toward romantic or sexual relationships with either males or females, one really can’t define a person’s sexual orientation without identifying that person’s sex.

Harris Mufson: Have other circuit courts addressed this question, that being is sexual orientation discrimination prohibited by Title VII?

Laura Fant: Yes, so the Second Circuit’s decision follows on the heels of the Seventh Circuit’s groundbreaking decision really, where they were the first circuit court in 2017 to recognize sexual orientation discrimination as specifically protected under Title VII.  However, the Eleventh Circuit also recently considered this issue and came out on the other side and found that Title VII does not expressly protect against sexual orientation discrimination. What this really means is that we could be setting up a circuit split that could go up the Supreme Court.

Harris Mufson: I think it’s also important to note that there are state, city and local statutory prohibitions against sexual orientation discrimination throughout the country. So for example, within the Second Circuit right in New York, in Vermont and Connecticut, are there any statutes on the books that directly address sexual orientation discrimination?

Laura Fant: Yes, in fact all three states that are located in the Second Circuit, New York, Connecticut and Vermont, all have state laws and in some instances, some city laws that already expressly protect sexual orientation as a protected class. So when it comes down to it, as a practical matter for employers, this decision doesn’t really change much when it comes to what they should be doing to protect their employees from discrimination.

Harris Mufson: And Laura, there was also a recent Sixth Circuit decision actually decided on March 7th, 2018, concerning the scope off sex discrimination under Title VII involving a transgender plaintiff. Can you explain what happened in that case?

Laura Fant: The Sixth Circuit decision is in a case called EEOC v. R.G. & G.R. Harris Funeral Homes. The case involved a transgender female employee who claimed that she was terminated from her position as a funeral director after she informed her employer that she would be transitioning from a biological male to a female. At the district court level, the court dismissed the claim, finding that Title VII does not expressly protect against discrimination on the basis of gender identity and specifically transgender status.

However, on appeal, the Sixth Circuit reversed and held that because Title VII protects against such things as sex stereotyping, and because transgender discrimination is in fact based on non-conformance of an individual’s gender identity and their appearance, with what otherwise goes along with the norms of their biological sex, then therefore transgender discrimination is in fact discrimination on the basis of sex.

Harris Mufson: So certainly two very interesting decisions by the Second Circuit and Sixth Circuit.  My sense of things is that the Supreme Court will ultimately weigh in here about what the scope is of the sex discrimination provision of Title VII, and that remains to be seen.

Laura Fant: I agree. I don’t think we’ve heard the last on these topics.

Harris Mufson: Thank you for joining us on The Proskauer Brief today. Stay tuned for more insights on the latest hot topics in labor and employment law, and be sure to follow us on iTunes.

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