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Appeals courts rule Title VII protects gay, transgendered workers

Two federal appellate courts have recently ruled that Title VII of the Civil Rights Act of 1964 protects workers from discrimination based on sexual orientation and transgendered status. They reasoned that the law's prohibition against discrimination "because of sex." Past rulings have found that gender discrimination includes situations in which a person fails to conform to gender stereotypes.

In the first case, the 2nd Circuit Court of Appeals in Manhattan ruled in favor of the estate of a former Long Island skydiving instructor. The now-deceased plaintiff was fired after he told a customer he was gay and his employer received a complaint.

The Equal Employment Opportunity Commission supported the man's discrimination claim. Along with LGBTQ advocates and many large companies, the agency argued that sexual orientation is by its very nature a function of one's gender. If the plaintiff had been a woman sexually oriented toward men, she would not have been fired. It was only because he was a man oriented toward men that he faced termination.

Interestingly, the Trump administration argued against its own EEOC in this instance. It contended that sexual orientation was never considered when Congress adopted Title VII.

In an en banc, 10-3 decision, the 2nd Circuit ruled that Title VII nevertheless applies because laws "often go beyond the principal evil to cover reasonably comparable evils."

Last year, the 7th Circuit Court of Appeals similarly held that Title VII prohibits employers from anti-gay discrimination. The U.S. Supreme Court has not ruled on the issue but has turned away at least one case posing the question.

The second case involved a transgendered woman who was fired from her job at a funeral home after disclosing her status to her employer. The employer argued that continuing to employ the plaintiff "would impose a substantial burden on its ability to conduct business in accordance with its sincerely held religious beliefs."

In a unanimous decision, the 6th Circuit Court of Appeals found in favor of the plaintiff, saying that "discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII."

The funeral home's religious burden argument was rejected, and it had already been weakened somewhat by the defendant's prior policies. Until fall 2014, the EEOC found, the business had provided work clothing to its male employees but not female ones. Such a disparity would presumably also be considered gender discrimination, had it been considered directly in the case.

These cases are important in reinforcing the EEOC's interpretation or Title VII to mean that non-compliance with gender stereotypes cannot be punished by employers through termination or any other negative job action.

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