NEW YORK – New York Attorney General Eric T. Schneiderman led an amicus brief filed with the U.S. Court of Appeals for the Second Circuit, arguing that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sexual orientation.
The brief was signed by Attorney General Schneiderman, Connecticut Attorney General George Jepsen, and Vermont Attorney General TJ Donovan. This week marks the second anniversary of the U.S. Supreme Court’s decision in Obergefell v. Hodges and the fourth anniversary of the Supreme Court’s decision in U.S. v. Windsor, as well as the last week of Pride Month. The Attorneys General argue that sexual orientation discrimination is a form of sex stereotyping and wrongly penalizes LGBTQ employees for conduct that would be considered “acceptable” if they were of the opposite sex – thereby constituting disparate treatment on the basis of sex.
“No employee should face discrimination because of his or her sexual orientation,” said Attorney General Schneiderman. “Title VII is meant to protect all Americans from discrimination based on their sex – and that includes sexual-orientation discrimination that targets people based on the gender of those with whom they have relationships. It is important to make clear that federal law – like New York State law – forbids penalizing employees for whom they love, as we continue our fight to root out discrimination no matter how it rears its ugly head.”
The case, Zarda v. Altitude Express, involves a former sky diving instructor who alleged that he was fired after disclosing his sexual orientation to a customer. The Attorneys General filed their amicus brief with the Second Circuit, which recently granted a petition for rehearing en banc.
“Sexual-orientation discrimination is a form of sex discrimination that violates Title VII,” the Attorneys General argue. “That statute strikes broadly at all forms of disparate treatment based on an employee’s sex, including punishing an employee’s failure to conform to sex stereotypes. Yet sexual-orientation discrimination does just that: it penalizes employees for failing to conform to sex stereotypes, namely, that men should seek and form intimate relationships only with women, and women only with men. That these stereotypes address intimate behavior – as opposed to other conduct subject to received notions of how men and women ought to behave – does not remove them from the broader category of sex stereotypes that employers may not impose without violating Title VII.”
The Attorneys General argue that recognizing that Title VII includes discrimination based on sexual orientation will help protect vulnerable employees and aid the States’ efforts to fight invidious discrimination and its harms.
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