Employers have for years have been advised that sexual orientation is not covered or protected under Title VII of the Civil Rights Act of 1964. However in 2015, the EEOC took the position that the phrase “because of…sex” included sexual orientation. On February 26, 2018, the 2nd Circuit Court of Appeals sitting as the full court and not as a panel decided that sexual orientation is definitely covered and protected under Title VII. In Zarda v. Altitude Express, Inc. the Court held: “because of … sex … extends to sexual orientation discrimination because sex is necessarily a factor in sexual orientation.” I would be surprised if this case doesn’t end up in the U.S. Supreme Court for the final word. However, employers should be aware that the EEOC holds the line on this and the courts are trending down this path as well.
On a local note the Arizona Court of Appeals on February 6, 2018 decided a “constructive discharge” case. In such a case, the employee alleges that the employer made their working life so miserable that a reasonable person would quit. If this true, the Courts treat the employee’s resignation as if the employer had fired the employee. The Court of Appeals in Peterson v. City of Surprise decided that when an employee quits and alleges a constructive discharge on the basis of protected status such as race, sex, national origin, etc. the employee must first file an administrative charge of discrimination with the appropriate state of federal agency (i.e. the EEOC). This is good news for the employer because they don’t need an attorney at the administrative stage, but do need one in Court. With a well documented defense by the employer, the case may be dismissed and never seen again, saving thousands of dollars in defense costs.
If you have any questions, please email me at tcope@mcrazlaw.com.
