Isolated Gay Pride flag with a justice weight scale signThe debate over whether or not Title VII of the Civil Rights Act applies to discrimination based on sexual orientation has been controversial and extensive. Myriad courts have been asked to resolve this question one way or another, and various legal interpretations have been advanced. On February 26, 2018, the Second Circuit Court of Appeals made a determination that the Title VII protections against “sex discrimination” include discrimination based upon sexual orientation. See, e.g., Daniel Wiessner, “U.S. appeals court says Title VII covers discrimination based on sexual orientation,” Reuters, Feb. 26, 2018, at https://www.reuters.com/article/us-usa-lgbt/u-s-appeals-court-says-title-vii-covers-discrimination-based-on-sexual-orientation-idUSKCN1GA201  (last visited Feb. 28, 2018). Following is a discussion of the Second Circuit’s decision and the implications it may have for the legal system and the nation, including the impact it may have on attorneys and the role expert witnesses might play.

Discussion:

Part of the reason the Second Circuit’s interpretation of Title VII is momentous is that it reversed an administrative policy from 2017 that denied such protections to members of the LGBTQ community. See, e.g., id. The Court’s decision was also one that the vast majority of its members agreed with, and in explaining the rationale for its 10-3 ruling, “Circuit Judge Robert Katzmann wrote that even though Congress had not sought to address gay bias in Title VII, laws ‘often go beyond the principal evil to cover reasonably comparable evils.’” Id.

The Seventh Circuit Court of Appeals reached a similar decision in April of 2017, and the Second Circuit’s ruling has been hailed by many LGBTQ-rights advocates as an indication of nationwide changes in policy. As one analyst expressed, “The decision has national implications. Currently, most states and the federal government do not explicitly prohibit anti-gay discrimination in the workplace. But if the courts agree that the Civil Rights Act already bans anti-gay discrimination, they could change the national landscape once and for all.” German Lopez, “This court ruling could help change the scope of gay rights in America,” Vox, Feb. 26, 2018, at https://www.vox.com/identities/2018/2/26/17053874/gay-rights-discrimination-second-circuit (last visited Feb. 28, 2018). However, in December, the United States Supreme Court declined to hear a similar case that arose out of Georgia. See Daniel Wiessner, supra. Various legal commentators are speculating about the Second Circuit ruling, which covers New York, Connecticut, and Vermont. They are questioning whether the Supreme Court will get involved and subsequently affirm or reverse the Second Circuit’s opinion. See German Lopez, supra.

Regardless of whether the Supreme Court changes its current stance of non-involvement, attorneys and individuals in the Seventh and Second Circuits are affected by these recent decisions. Moreover, there may be a substantial number of lawsuits that follow these rulings, which attempt to interpret how sexual orientation claims should be handled in practice. Title VII protects individuals in various employment situations, such as hiring, compensation, terms of employment, benefits and privileges, training, discharge, promotions, and work assignments. See, e.g., Jana Howard Carey, et al., “Basics of Employment Discrimination Law for Law Clerks,” American Bar Association, Aug. 2005.  Employment discrimination attorneys will have to explore uncharted territory with sexual-orientation litigation since a number of legal questions are not immediately answered by the Second Circuit’s decision.

Specifically, while sexual-orientation discrimination is to be treated as sex or gender discrimination in the Second Circuit, there are differing interpretations of whether or when such discrimination has occurred. For instance, there are two models under which an employee can prevail on a sex-discrimination claim under Title VII: disparate treatment and disparate impact. See, e.g., Jody Feder, “Sex Discrimination and the United States Supreme Court: Developments in the Law,” Congressional Research Service, Dec. 30, 2015.

(1). Disparate Treatment: To prevail on a disparate treatment theory, a party must show that the employer had an intent to discriminate on the basis of sex, which is understood to include sexual orientation in certain circuits. See generally id. In order to prove such intent, attorneys will require the help of employment, discrimination, sexual orientation, human resources, and civil rights expert witnesses because the party alleging discrimination in a disparate treatment case has the evidentiary burden. See generally id. To prove intent to discriminate, many experts provide evidence that in making an employment decision, an employer was motivated by a particular protected class. See, e.g., Raytheon Co. v. Hernandez, 540 U.S. 44, 52, 13 AD 1825 (2003). In order to determine an employer’s motives, experts must often compare the alleged hiring practice to how members of a non-protected class are treated and determine whether the practice at issue is different. If the practice differs in a significant way, attorneys can build a case with expert evidence that demonstrates what those differences are and how they impact LGBTQ individuals.

Aside from a general disparate treatment case, some attorneys or agencies that bring suit against an employer allege a “pattern or practice” of systemic discrimination. See, e.g. Michael Selmi, “Theorizing Systemic Disparate Treatment Law,” 32 Berkeley J. Emp. & Lab. L. 477 (2011). Many patterns or practice cases are class actions, which arise out of sex-discrimination claims, rely upon experts to succeed. See, e.g. id. For instance, one groundbreaking sex-discrimination case against a very large employer prevailed because “the plaintiffs…employed a team of experts who have performed a number of statistical analyses that consistently demonstrate large statistical disparities in promotions and pay of women, holding relevant factors constant.” Id. Systemic disparate treatment cases are considered by some legal scholars to be the “most potent” type of sex-discrimination lawsuits, and determining whether an employer has a pattern or practice of discrimination based on sexual orientation may now be at issue in states that are governed by the Seventh or Second Circuits. Id.

(2). Disparate Impact: A disparate impact theory does not require proof that an employer intentionally discriminated against a protected class in order for a charging party to prevail. See, e.g., Int’l. Bd. of Teamsters v. U.S., 431 U.S. 324 (1977).  Instead, a plaintiff would be required to provide evidence that a facially-neutral employment practice resulted in discrimination against a protected class. See id. The Supreme Court has held that to prove a disparate impact case, a party must show “that specific practices (and not the cumulative effect of the employer’s selection practices) adversely affected a protected group.”  Equal Employment Opportunity Commission (EEOC), “Selected Supreme Court Decisions,” no date given, at https://www.eeoc.gov/eeoc/history/35th/thelaw/supreme_court.html (last visited Feb. 28, 2018) (citing Wards Cove Packing Co. v. Antonio, 490 US 642 (1989)). Disparate impact cases typically require a higher evidentiary burden on prospective plaintiffs, so in addition to the experts who would be of guidance in a disparate treatment case, attorneys may also need statisticians and individuals who can assess how a policy affects a group of individuals on a large scale and/or over a period of time.

Conclusion:

In any sexual orientation discrimination case, attorneys and courts will be faced with how Title VII’s sex discrimination theories for recovery might apply where an LGBTQ individual is involved. The Second Circuit’s decision has meant that three more states will be addressing how to apply existing sex discrimination theories to claims that have only been considered covered by Title VII for a few days. Expert witnesses have played a central role in establishing and refuting employment discrimination claims based on gender. Now that two circuits have ruled that sexual orientation discrimination is prohibited by Title VII, experts will be indispensable to help the legal community interpret how the law applies to a newly-protected class.