Congress must clarify no discrimination

Congress needs to amend the Civil Rights Act to explicitly include protection from same-sex discrimination. Short of that, and with appellate courts divided, the matter could be headed to the U.S. Supreme Court.

I t is absurd in these times that the law would fail to protect an individual from discrimination in the workplace because of his or her sexual orientation. While 21 states, including all of New England, have laws prohibiting such employment discrimination, Congress has repeatedly failed to amend the federal Civil Rights Act to extend that protection nationwide.

The Equal Employment Opportunity Commission has sought to fill the gap by interpreting the 1964 act in the context of a changing legal framework and evolving societal attitudes. In so doing, it concludes the act does prohibit discrimination based on sexual orientation. Appellate courts have split on whether the EEOC’s interpretation is legally and constitutionally sound.

This uncertain situation provides very tenuous protection. It means an individual in any of those other 29 states could find themselves fired, or denied a job, because of their sexual orientation and could not with any confidence expect to be protected by law.

At a time when same-sex marriages are legal, when society has largely become comfortable with the reality that a significant segment of the population is oriented toward partners of the same gender, the situation is ridiculous and unacceptable.

Congress needs to amend the Civil Rights Act to explicitly include protection from same-sex discrimination.

Short of that, and with appellate courts divided, the matter could be headed to the U.S. Supreme Court.

The latest ruling came last week from the U.S. Court of Appeals for the Second Circuit in New York. In a divided vote it upheld an EEOC decision that found the Civil Rights Act does protect from sexual-orientation discrimination in the workplace.

In 2010, Long Island sky-diving instructor Donald Zarda, in what he said was an attempt to put at ease an adult female student he was about to be tethered to for a jump, told her he was “100 percent gay.” When her boyfriend complained about the statement, Zarda was fired by his employer, Altitude Express. Zarda contended it was his admission to being homosexual that led to his firing, while the company claimed it was the inappropriateness of the comment.

Though Zarda died in a sky-diving accident in 2014, the case carried forward on appeal. The EEOC found in his favor, pointing to the act’s outlawing of bias due to “race, color, religion, sex or national origin.” In finding in Zarda’s favor, the EEOC concluded, “sexual orientation is inherently a sex-based consideration.”

The majority decision in the federal appeals court reached essentially the same conclusion.

“Sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted,” wrote Chief Judge Robert A. Katzmann.

In March 2017 the 11th Circuit in Atlanta had reached a different conclusion, finding the act provided no such protection. A month later, the Seventh Circuit in Chicago ruled it did.

In rejecting such an extension of the act’s protection, the Atlanta Circuit raised substantive arguments. Certainly Congress intended no such protection when the law passed in 1964. And Congress has had many opportunities to change the law and has not done so.

In the absence of congressional action, and given the Supreme Court’s ideological makeup, it could well concur with the 11th Circuit in finding no federal protection from same-sex discrimination.

Congress can and should sidestep the potential for such a controversial decision by acting to extend the protections of the Civil Rights Act.