In a win for LGBTQ rights, the Second Circuit Court of Appeals decided Zarda v. Altitude Express, Inc. on February 26, ruling that the Civil Rights Act of 1964 prohibits discrimination in the workplace on the basis of sexual orientation. This decision is the latest contributor to a split amongst the federal appellate courts, with two Circuits handing down opposing rulings in 2017. If the majority that upheld marriage equality in the Supreme Court agrees with the Second Circuit here, this widening rift presents an opportunity to secure LGBTQ rights that have been in the making for over 20 years.

Title VII was at the center of similar litigation in 1998, when the petitioner in Oncale v. Sundowner Offshore Services, Inc. asked the Court to decide whether same-sex harassment constitutes “discrimination because of sex.”  In a unanimous decision written by Justice Scalia, the Court found that sexual harassment between men and women may have been the “principal evil” addressed by Civil Rights Act, but not the exclusive one.

Even though “comparable evils” like same-sex harassment were probably not the focus of Title VII’s authors, the Court held that the complete meaning of the statute’s provisions take preference over its “principal concerns” alone. In Oncale the overarching issue was whether harassment creates “an environment that a reasonable person would find hostile or abusive,” meaning that all sexual harassment, regardless of the sex of the parties, was prohibited by Title VII.

The Second Circuit employed this sort of reasoning in the Zarda decision this week, drawing on cases where courts extended Title VII protection to characteristics that are a “function of sex, such as life expectancy and non‐conformity with gender norms.” With this precedent as support, the circuit court held that Title VII’s protections against workplace sex discrimination include sexual orientation as a function of sex, as orientation is often described in relation to sex (Zarda would be discriminated against as a man who is attracted to other men).

The Seventh and Eleventh Circuits explored this question last year, with the Seventh Circuit making a similar ruling to the one in Zarda. Noting that the effort to separate sex from sexual orientation is often convoluted and “has led to confusing and contradictory results,” the Seventh Circuit argued that an employee in a same-sex relationship is identified, in part, by their sex and the sex of their partner. With this in mind, the Seventh Circuit prohibited discrimination on the basis of sexual orientation because the contrary position would seemingly allow sex discrimination, but only towards people who aren’t heterosexual.

The Eleventh Circuit’s divergence from the Second and Seventh Circuits is rooted in Fifth Circuit precedent (which was decided before the eastern half of the Fifth Circuit became the Eleventh Circuit in 1981). The controlling Fifth Circuit case Blum v. Gulf Oil Corporation (1979) states simply: “Discharge for homosexuality is not prohibited by Title VII,” and the Eleventh Circuit today has refused to overturn that determination without direction from the Supreme Court.

The Supreme Court declined to review the Eleventh Circuit’s position late last year, allowing that appellate court’s Title VII stance to remain for now, but the Zarda decision could very well put the issue back in play. With circuit splits being the Supreme Court’s “most potent case-selection tool,” the growing rift in the federal appellate courts increases the need for consistency that only their final decision can provide.

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Kwame is a 1L at HLS. His hometown is Winter Haven, Florida, and he recieved BAs in Government and American Studies at Cornell University. Kwame is active in the Harvard Prison Legal Assistance Project, the American Constitution Society, and the Mississippi Delta Project, and will spend his summer working for the DC Public Defender Service. Follow him at @Kwammentary

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