Demonstrators in Washington carry rainbow flags past the White House during the Equality March for Unity and Peace on June 11, 2017.
Zach Gibson/Getty Images
Demonstrators in Washington carry rainbow flags past the White House during the Equality March for Unity and Peace on June 11, 2017.

Editor’s Note: Caroline Polisi is a federal and white collar criminal defense attorney in New York and is of counsel at Pierce Burns LLP. She frequently appears on CNN as a legal analyst and is an anchor at the Law & Crime Network, providing live legal analysis on the country’s high profile court cases. Follow her @CarolinePolisi. The views expressed in this commentary are her own.

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The most important and culturally significant legal battles are often waged through piecemeal victories won at a glacial pace – two steps forward, one step back. The federal Defense of Marriage Act, which was enacted by Congress in 1996 in an attempt to curb states from legally recognizing same-sex marriage, was not ruled unconstitutional by the Supreme Court until 2013.

Caroline Polisi
Yulia Nar
Caroline Polisi

Consequently, the unwieldy machine that is “the law,” inevitably lags behind the zeitgeist and develops idiosyncrasies that are confusing at best, and illogical at worst.

The United States Court of Appeals for the Second Circuit this week took a bold step toward correcting this landscape in the area of employment discrimination law, which in many jurisdictions illogically holds that discrimination based on sexual orientation is distinct from, rather than an example of, sex discrimination.

In Zarda v. Altitude Express, the Second Circuit ruled with a resounding 10-3 majority that Title VII of the Civil Rights Act of 1964 prohibits not only sex discrimination based on gender-nonconformity, but also includes a prohibition on discrimination on the basis of sexual orientation. Shockingly to some, this is a controversial decision, and it is not the law of the land throughout the United States. In fact, the Justice Department’s official position is that the Civil Rights Act should not be construed to protect LGBT individuals, and they filed a brief asserting so in the Zarda case.

Enacted by Congress in 1964, Title VII makes it an “unlawful employment practice for an employer … to fail or refuse to hire or to discharge … or otherwise to discriminate against any individual with respect to his (or her) compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin …”

The shorthand courts use when analyzing Title VII sex-discrimination claims is that a plaintiff alleging disparate treatment in violation of Title VII must show that he or she was discriminated against “because of … sex.”

The first landmark interpretation of this language by the Supreme Court came in 1989 in Price Waterhouse v. Hopkins, which paved the way for what we now consider a “gender stereotyping” claim – when an employee is discriminated against for failing to fit into a gender-conforming mold. The female plaintiff in Price Waterhouse was denied a promotion because of her nonconformity with stereotypes about how a woman “should” act. She was told to “walk more femininely, talk more femininely, dress more femininely, wear makeup, have her hair styled, and wear jewelry,” and was criticized for being too “macho.” The decision now stands for the principle that employers cannot legally discriminate against employees for failing to adhere to traditional gender norms.

The controversy in this latest Title VII litigation still lies where it always does: in the text of the statute itself. Those who wrote amicus briefs against the plaintiff in Zarda – including the Trump Justice Department – argue that Title VII was never meant to afford the LGBT community protection, and to do so now would be an impermissible expansion of legislative intent. Never mind that the Supreme Court has repeatedly admonished against this kind of argument, or that we now live in a world in which a woman could marry her same-sex partner one day, only to be fired for it the next (an absurdity pointed out specifically by the majority opinion in Zarda). According to the Second Circuit, for the purposes of Title VII protections, discrimination based on sex and discrimination based on sexual orientation is a distinction without a difference; both are included in the statute’s prohibitions.

Gay, lesbian, and bisexual employees’ personal experiences bear out the necessity of this ruling. It’s likely that there will be significant overlap between the specific hostility on display against a targeted employee; if one were to draw a Venn diagram of motivation, “sex discrimination” and “sexual orientation discrimination” would often overlap. Social psychologists have repeatedly demonstrated that animus against gender nonconformity is inextricably linked with animus against sexual orientation nonconformity. Because these types of discrimination are often indistinguishable in the mind of the offender, it is certainly beyond the capacity of the court process to decipher such nuances; they must therefore both be included in the protections of the law.

Take the case of Brian Prowel, who was continually harassed at his factory job in Western Pennsylvania, including repeatedly being called “Princess,” “Rosebud,” “fag,” and “faggot.” In his case, the Third Circuit noted that even though it was allowing Mr. Prowel’s Title VII claims to proceed under a sex-discrimination theory, it was very possible that his harassment had more to do with his “sexual orientation” than his “effeminacy.”

In keeping with the pace of our cultural understanding of sex discrimination, in 2015, the Equal Employment Opportunity Commission held, for the first time, that “sexual orientation is inherently a ‘sex-based consideration;’ accordingly an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” For many, this was a crucial step in the evolution of our legal doctrine, which can and should change with the times.

But it may take many more years before this issue finally makes it to the Supreme Court. Until that time, there will be a “circuit split” on the issue, in which different jurisdictions will adhere to different standards. Currently only two Circuits (the Second and Seventh), those governing the states of New York, Connecticut, Vermont, Illinois, Indiana, and Wisconsin, have affirmatively held that discrimination based on sexual orientation is prohibited under the Civil Rights Act.

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The Supreme Court declined to review a different case addressing the same issue last year, but some speculate that Zarda may prompt the Court to look at the issue anew. One can only hope that it makes the logical conclusion that discrimination based on sexual orientation is and should be prohibited under Title VII as discrimination “based on … sex.”