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Thursday, August 3, 2017

Battle of the feds! DOJ, EEOC lock horns on sexual orientation bias


Battle of the feds! DOJ, EEOC lock horns on sexual orientation bias

The U.S. Department of Justice and the Equal Employment Opportunity Commission are at cross purposes in the “gay skydiver” case.

Donald Zarda worked for Altitude Express as a skydiving instructor. Following one jump, a customer complained that Zarda had disclosed his homosexuality and other personal details during the jump. Zarda was fired soon thereafter. He sued Altitude Express claiming sex discrimination under Title VII, gender and sexual orientation discrimination under New York state law, and violation of state and federal wage and hour laws. Zarda is deceased but his lawsuit lives on through the two executors of his estate who have replaced him as plaintiff. At trial on his state law discrimination claim, the jury found that Zarda had not proved that his sexual orientation was a determining factor in his termination.

On appeal, Zarda claimed that Title VII protects against sexual-orientation discrimination and that part of his case should not have been dismissed. The U.S. Court of Appeals for the Second Circuit recently signaled that it might overrule its precedent holding that Title VII’s ban on sex discrimination does not include sexual orientation discrimination.

In late June, the EEOC filed a brief in support of Zarda’s estate, whose lawsuit has been unsuccessful so far. The EEOC argued that Title VII does indeed prohibit discrimination based on sexual orientation.

But then last week, the Trump/Sessions DOJ filed a brief in support of the employer, flat-out saying that the EEOC is wrong and that its authority is limited: “Although the [EEOC] enforces Title VII against private employers and it has filed an amicus brief in support of the employee here, the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.” There brews a bigger battle of a conflict of the Circuits Courts of Appeals on this very issue that will require U.S. Supreme Court intervention.

Common Sense Counsel: while the battle lines are drawn between Trump v Obama policy agendas, there is still no substitute for training your supervisors in effective and defensible termination and harassment prohibitions in all forms - to include gender identification and sexual orientation. Also, the new claim of “failing to conform to gender stereotypes” appears to be gaining traction in the 11th Circuit Court of Appeals.

Specifically, train your supervisors not to use lose words like “attitude” or “company culture” or “sexuality” or similar phrases that lack defined meaning in employment law, as the courts may assign meaning you do not like. Train all employees that it is about respect in the workplace and being able in work with others in a civil and cooperative manner are essential job functions. In fact, make respectful behavior part of your statement of values. And update your harassment prevention/professional conduct policy, investigative notebook and training updated to include all forms of disrespectful and protected status individuals.  


Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. Robin Shea, one of Tommy’s Partners featured part of this story in a recent Constangy blog post. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com