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Sexual Orientation Discrimination and Finite Telecommuting Request

By: Karen Piper and Danielle Lester

03/08/18

SECOND FEDERAL APPEALS COURT RULES TITLE VII BANS SEXUAL ORIENTATION DISCRIMINATION

On February 26, 2018 the Second Circuit Court of Appeals became the latest appellate court to rule that discrimination based on sexual orientation is prohibited by Title VII. Zarda v. Altitude Express, Inc., Case No. 15-3775. The Court said, “sexual orientation discrimination constitutes a form of sex discrimination ‘because of … sex’ in violation of Title VII.”

The case was brought by Donald Zarda, a sky-diving instructor who was fired in 2010 after an incident with a female customer. Zarda claimed he was fired for telling the customer that he was gay. His employer said it fired Zarda because Zarda had touched the customer inappropriately during a tandem jump.

Zarda sued for sexual orientation discrimination and gender stereotype discrimination under Title VII and New York state law. The district court dismissed his Title VII claim in 2014 because at that time the Second Circuit Court of Appeals, consistent with the consensus among the other federal appeals courts, and the then-position of the Equal Employment Opportunity Commission (“EEOC”), had ruled that Title VII did not prohibit discrimination on the basis of sexual orientation.

Zarda’s claim of sexual orientation discrimination under New York law was tried. The jury agreed with the employer. Zarda then appealed the court’s previous dismissal of his Title VII claim. A three-judge panel of the Second Circuit denied the appeal because it was bound by Second Circuit precedent. Zarda then asked the entire Second Circuit to review his case. The Second Circuit ruled 10-3 that sexual orientation discrimination should be treated as a subset of sex discrimination under Title VII because:

  • sex is necessarily a factor in sexual orientation discrimination which is based on the sex of the employee and the sex of the individuals to whom the employee is attracted;
  • being attracted to same-sex individuals is contrary to gender stereotypes (that employees should be attracted to opposite sex individuals); and
  • sexual orientation discrimination is a form of associational discrimination because it is based on the employee’s association with same-sex individuals. Associational discrimination has been applied in the context of race, often involving an employee’s marriage or other association with an individual of a different race. Associational discrimination is expressly prohibited by the Americans with Disabilities Act. The ADA prohibits discrimination against an employee because the employee has a family member with a disability.

Three judges dissented. These judges agreed that “individuals [should] not be subject to workplace discrimination on the basis of sexual orientation.” However, based on the “historical context” of 1964 when Title VII was passed, these judges could not conclude that Congress had prohibited sexual orientation discrimination when it passed Title VII. The majority opinion observed that the same was true of other forms of discrimination, such as sexual harassment and hostile work environment. Both of these theories were initially rejected by the courts as not prohibited by Title VII, but ultimately recognized by the United States Supreme Court as being prohibited by Title VII.

The Zarda opinion is binding in the Second Circuit (covering New York, Connecticut and Vermont). It is consistent with an April 2017 opinion from the Seventh Circuit Court of Appeals (covering Illinois, Indiana and Wisconsin) which also ruled that Title VII prohibits discrimination on the basis of sexual orientation. It is contrary to a March 2017 opinion by the Eleventh Circuit Court of Appeals (covering Alabama, Florida and Georgia) which decided Title VII does not prohibit sexual orientation discrimination. The Sixth Circuit (covering Michigan, Ohio, Kentucky and Tennessee) has not addressed this issue but did rule in a gender identity case that it is unlawful to discriminate based on nonconformity with gender stereotypes of how a man or woman should look and behave.

Due to the divergence of opinions on this issue among the federal appeals courts and among various federal departments and agencies (the Department of Justice filed an amicus brief in support of the employer in Zarda; the EEOC filed an amicus brief in support of the employee; the Office of Federal Contract Compliance Programs mandates nondiscrimination on the basis of sexual orientation by federal contractors), it is widely expected that the U.S. Supreme Court will have to decide whether Title VII prohibits discrimination on the basis of sexual orientation The Court declined a request to review the Eleventh Circuit case in December 2017.

With so many inconsistent court and agency opinions, employers are wise to ask what they should do. The most practicable answer is simple. Until final guidance is provided by the U.S. Supreme Court, presume that sexual orientation discrimination is prohibited by Title VII.

FINITE TELECOMMUTING REQUEST MAY BE A REASONABLE ACCOMMODATION

Mosby-Meachem v. Memphis Light, Gas & Water Div., Case No. 17-5483 (6th Cir. Feb. 21, 2018) involved a lawsuit filed by an in-house attorney at the company. The company’s legal department had an 8:30am-5:00pm attendance policy for its attorneys. Although the company did not have a formal written telecommuting policy, in practice, employees often telecommuted.

Following surgery and placement on modified bed rest, the attorney made an official accommodation request, supported by medical documentation, that she be permitted to work from a bed either within the hospital or within her home for ten weeks. The company’s ADA Committee rejected the proposal based on the determination that physical presence in the office was an essential function of the attorney’s job, and teleworking created concerns about maintaining confidentiality. Her internal appeals were denied.

The attorney filed a lawsuit against the company for failure to accommodate and retaliation under the Americans with Disabilities Act (“ADA”) and for pregnancy discrimination under state law. In relevant part, the jury awarded her a verdict of $92,000 in compensatory damages on her claim of disability discrimination. The company appealed. The Sixth Circuit Court of Appeals affirmed the verdict.

On appeal, the company’s main argument was that the attorney was not a qualified individual with a disability because physical attendance at work was an essential function of the job of in-house attorney. There was some evidence to support this argument. The Court nevertheless found that there was other evidence that supported the jury’s finding that she could perform the essential functions of her job remotely for ten weeks. Several employees as well as outside counsel testified that they felt she could perform all essential functions during the 10-week period working from home. Further, there was evidence that undermined the company’s position, such as testimony about the attorney job description. It was based on a 20-year old survey that did not reflect changes in the job that resulted from technological advances. It also included tasks, such as trying cases and deposing witnesses, which the attorney had never performed in her eight years of employment at the company. The Court also noted that no one complained about the attorney’s performance while working from home during the three weeks following her initial request until it was denied.

The Court of Appeals distinguished other precedent, EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015) (en banc), and Williams v. AT&T Mobility Services LLC, 847 F.3d 384 (6th Cir. 2017), noting that, “because Ford and Williams leave open the possibility of teleworking as a reasonable accommodation, particularly for a finite period of time, a jury could have reasonably concluded from the evidence presented at trial that [the attorney] could perform all the essential functions of her job remotely for ten weeks.”
This case should serve to remind employers that all requests for accommodation should be examined on a case-by-case basis. With respect to telecommuting accommodations, the length of the requested accommodation may be relevant to a determination of whether the request is reasonable.