California Law Unequivocally Prohibits Employers From Discriminating Against Employees Based on Sexual Orientation

Recently the U.S. Justice Department submitted a brief in Zarda v. Altitude Express arguing that Title VII of the Civil Rights Act does not protect workers from discrimination based on their sexual orientation. Donald Zarda was a skydiving instructor who sued his employer for discriminating against him based on his sexual orientation in violation of Title VII.  Title VII, a federal law that prohibits discrimination, specifically prohibits employment discrimination based on “sex.” The U.S. Justice Department’s position is that discrimination based on “sex” does not include discrimination based on sexual orientation. This position is a departure from the position of the U.S. Equal Employment Opportunity Commission which has argued for years that sexual orientation discrimination is sex discrimination.

Courts have differed on whether Title VII protects workers on the basis or their sexual orientation or not. This has led to a split of authority in several federal districts. For example, in 2000, the Seventh Circuit decided that Title VII did not protect workers on the basis of their sexual orientation, but earlier this year, the Seventh Circuit sitting en banc came to the opposite conclusion: that Title VII does in fact protect workers based on their sexual orientation. Compare Hamner v. St. Vincent Hospital & Health Center, Inc. (7th Cir. 2000) 224 F.3d 701 and Hively v. Ivy Tech Community College of Indiana (April 4, 2017, en banc.)

While federal courts continue to argue the meaning of “sex” under Title VII, California employees can rest assured that they are protected from discrimination based on their sexual orientation. The California Fair Employment and Housing Act (“FEHA”) explicitly prohibits discrimination against any person because of his or her sexual orientation. This means that employees in California are protected from discrimination based on their actual and/or perceived sexual orientation. Cal. Gov. Code §§ 12926(o), (s); 12940(a)-(d). Like Title VII, FEHA also prohibits discrimination based on “sex” but FEHA expressly defines “sex” to include “gender” which is defined as a person’s “gender identity” and “gender expression.” Cal. Gov. Code § 12926(r)(2).

The Justice Department’s position in Zarda is disappointing as it advocates for limiting protections to workers. However, this does not change the protections for California employees. Under California law, employees are undeniably protected from discrimination based on their sexual orientation. We hope the Zarda appeals court will decide to protect workers in the Second Circuit from sexual orientation discrimination as well.

Jean Krasilnikoff