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Sexual orientation dispute takes new turn

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David Barmak, Esq.
David Barmak, Esq.

Long-term care providers will want to closely watch the outcome of an ongoing court dispute over whether Title VII of the Civil Rights Act of 1964 outlaws discrimination on the grounds of sexual orientation — as opposed to gender— because the legal requirements and managerial expectations have taken a new turn with the filing of a brief by the Department of Justice arguing that it does not. 

The DOJ had filed the brief in the case of Donald Zarda, who had filed suit against his former employer Altitude Express in a case which revolves on the dispute over the wording in Title VII's protections.

Title VII makes it an unlawful employment practice for an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin,” or to “limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.”

However, the issue lies in the “Definitions” section of the act (SEC. 2000e. [Section 701]) and paragraph k in particular, which states that “the terms ‘because of sex or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes.”

In July 2016, a full panel of the 11th Circuit Court of Appeals declined to rehear the case of Jameka Evans, a hospital security guard who says she was forced out because she was a lesbian, arguing that the provisions of Title VII had no bearing on her. Evans argued that her employer violated Title VII by discriminating against her because of her “sexual orientation,” but a three-judge panel of the court denied her claim, which sparked the equally unsuccessful appeal.

However, in April 2017, Judge Diane Wood wrote for the 7th Circuit Court of Appeals ruling that Title VII did indeed prohibit workplace discrimination against homosexual and lesbian employees. 

“We conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination," Judge Wood wrote in the April 5 decision.

The ruling was a victory for Kimberly Hively, who sued Ivy Tech Community College, arguing that the school violated Title VII of the Civil Rights Act of 1964 when it denied her employment.

"Any discomfort, disapproval, or job decision based on the fact that the complainant — woman or man — dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex," Wood wrote.

"That means that it falls within Title VII's prohibition against sex discrimination, if it affects employment in one of the specified ways," Wood added.

However, Judge Diane Sykes wrote in a dissenting opinion, for three members of the court, that if Hively had been denied a job because of her sexual orientation, she was "treated unjustly."

"But Title VII does not provide a remedy for this kind of discrimination. The argument that it should must be addressed to Congress," Sykes wrote. She said that classifying people by sexual orientation is "different" than classifying them by sex. "The two traits are categorically distinct and widely recognized as such," she said.

In the latest Donald Zarda case, the DOJ has argued that "the sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination. It does not, as has been settled for decades. Any efforts to amend Title VII's scope should be directed to Congress rather than the courts.”

The facts of the matter appear to favor the DOJ's position, given that the Act's definition makes no mention of discrimination on grounds of sexual orientation, and only specifically refers to women and childbirth. However, as the previous decisions show, the courts are increasingly taking interpretative decisions which are not necessarily specifically defined in the law, and the latest Zarda suit may be a case in point.

Whatever the court's decisiron might be, it is clear on a day-to-day basis for long-term care providers that the matter ultimately needs to be resolved by Congress, so as to prevent further ongoing disputes of this nature.


David Barmak, Esq., is a member of Barmak & Associates LLC, a healthcare law firm in Princeton, New Jersey, and is Chief Executive Officer of Med-Net Concepts, LLC, a healthcare consulting firm. Betty Frandsen, MHA, NHA, RN, is the director of Education for Med-Net Compliance LLC, an affiliate of Med-Net Concepts.

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