Wednesday, May 21, 2008


An interesting ruling on employment discrimination

Title VII of the 1964 Civil Rights Act serves as the basis for most claims of discrimination in employment. Title VII asserts that—

It shall be an unlawful employment practice for an employer -

(1) 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;

In April a case was decided by the U.S. Court of Appeals in New York (2nd Circuit) in which Craig Holcomb, a white basketball coach, alleged that he had been fired from Iona College because he had married a black woman.

In other appellate jurisdictions (but not all), similar cases claiming discrimination based on the plaintiff's association with people of other races have been rejected. Some courts have ruled that the language of Title VII doesn't provide the basis for such a claim—that is, Title VII prohibits discrimination based on your race but says nothing about protecting your associations.

The 2nd Circuit disagreed with these rulings and declared—

Holcomb alleges that he was discriminated against, not solely because of his own race, but as a result of his marriage to a black woman. This Court has never ruled on the question of whether Title VII applies in these circumstances. We resolve that question today, and hold that an employer may violate Title VII if it takes action against an employee because of the employee’s association with a person of another race.

After considering contrary rulings in other jurisdictions, the court explained its reasoning—

We reject this restrictive reading of Title VII. The reason is simple: where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.

Makes sense to me. In other words, if a black coach married to a black woman would not have been fired, but a white coach married to a black woman would be fired, the man is suffering discrimination because of his race.

While this is the first such ruling by the 2nd Circuit, it's in agreement with rulings in certain other appellate jurisdictions. Clashes among the decisions of the various appellate courts typically set the stage for a hearing by the Supreme Court to resolve the matter.

An extension of the logic

Now here's where it gets interesting. In an analysis of these cases involving issues of association, Carla J. Rozycki and Darren M. Mungerson write

The reasoning of the Holcomb decision may provide authority to support the notion that discrimination based on sexual orientation or the same sex of one's partner is actionable under Title VII as sex discrimination. The language of Title VII does not prohibit employers from discriminating based on an employee's sexual orientation or same-sex relationships, just as the language of Title VII does not prohibit employers from discriminating against employees based on their interracial associations. The court in Holcomb reasoned that discrimination against a white employee because of his relationship with a black woman was discrimination on the basis of his race (white) — had he been black, his marriage would not have been interracial. Applying that reasoning to a claim by a male or female employee in a same-sex relationship, but for the employee's sex, the employee would not have been in a same-sex relationship, so discrimination against the employee for being in a same-sex relationship is based on the employee's sex.

That would be a remarkable evolution of Title VII employment protections. Unless the Supreme Court eventually rules that claims of discrimination based on association are not covered by the law or the Congress explicitly amends the law to forbid such claims (ain't gonna happen), protection of same-sex relationships seems inevitable.

Rozyski and Mungerson have reached the same conclusion—

... in light of the developing law, employers are well advised to base adverse employment decisions on legitimate business factors other than employee interracial or same-sex relationships.

As I write this I hear something howling off in the distance. A religious ceremony perhaps.


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