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Second Circuit Holds That Title VII Covers Sexual Orientation Discrimination

Lev Craig and Leah Kessler

This summer, we reported on the Second Circuit’s decision to review en banc its holding in Zarda v. Altitude Express, Inc., where the Second Circuit had affirmed the dismissal of the plaintiff’s sexual orientation discrimination claims brought under Title VII of the Civil Rights Act of 1964 (“Title VII”) on the grounds that Title VII does not cover sexual orientation discrimination. On Monday, the Second Circuit broke with precedent and reversed that decision, finding that Title VII’s prohibition against sex discrimination includes discrimination on the basis of sexual orientation.

While Title VII forbids discrimination in the workplace based on race, color, sex, religion, and national origin, the statute does not explicitly prohibit sexual orientation–based discrimination. This has historically left many employees vulnerable to discrimination because of their sexuality: No federal law explicitly forbids discrimination against LGBT people in the workplace, local laws differ considerably from state to state, and the U.S. Supreme Court has never addressed whether Title VII covers sexual orientation discrimination. While, under the Obama administration, the Equal Employment Opportunity Commission (EEOC)—the government agency that interprets and enforces Title VII—made clear that it views sexual orientation discrimination as a violation of Title VII, the EEOC’s interpretations don’t have legal force in federal court, and courts have typically dismissed Title VII sexual orientation claims in the past.

But recently, workers have begun to challenge this precedent with lawsuits alleging Title VII sexual orientation discrimination claims. The Seventh Circuit Court of Appeals made history last spring with its decision in Hively v. Ivy Tech Community College when it became the first circuit court to hold that Title VII’s sex discrimination provision covers sexual orientation discrimination. In Hively, the Seventh Circuit found that the alleged sexual orientation discrimination was “paradigmatic sex discrimination” because the plaintiff had “described a situation in which, holding all other things constant and changing only her sex,” she would not have experienced discrimination. The Seventh Circuit also found that it constituted associational sex discrimination, as “if we were to change the sex of one partner in a lesbian relationship, the outcome would be different,” making clear that “the discrimination rests on distinctions drawn according to sex.”

In 2010, Altitude Express terminated Donald Zarda, a Long Island sky-diving instructor. When Mr. Zarda was preparing for a tandem sky-dive with a female student, he told her that he was “100 percent gay,” and her boyfriend later complained to Altitude Express, who terminated Mr. Zarda’s employment. Mr. Zarda then filed a lawsuit in the U.S. District Court for the Eastern District of New York, claiming that his firing violated Title VII. The Eastern District initially ruled against Zarda, and in April 2017, the Second Circuit affirmed the district court’s decision, relying on Simonton v. Runyon, a 2000 Second Circuit decision holding that Title VII did not protect against discrimination based on sexual orientation.

Mr. Zarda died in a sky-diving accident in 2014. His estate, however, continued his appeal, and on May 25, 2017, the Second Circuit agreed to an en banc review of the case—an unusual circumstance where all active judges on a circuit bench hear a case together and have the power to overturn circuit precedent. In July 2017, the Trump administration decided to weigh in on the Zarda case. Justice Department lawyers filed a friend of the court brief in Mr. Zarda’s case, arguing that Title VII protections did not extend to sexual orientation (on the same day that Trump suggested on Twitter that transgender people would be barred from serving in the military).

In its February 2018 decision, the Second Circuit overturned its April 2017 ruling, breaking with precedent—and the Justice Department—and finding that Title VII’s sex discrimination provision encompasses sexual orientation discrimination. While the court conceded that Title VII was probably not originally intended to address discrimination based on sexual orientation, the court held that this ruling was consistent with other decisions that expanded the original reach of Title VII, such as those finding that Title VII covers sexual harassment and sexual stereotyping.

Robert A. Katzmann wrote in Monday’s decision: “Title VII’s prohibition on sex discrimination applies to any practice in which sex is a motivating factor.” Accordingly, discriminating against someone based on their sexual orientation is sex discrimination “because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.” The court also found that sexual orientation discrimination is a form of sex stereotyping, since it is “predicated on assumptions about how persons of a certain sex can or should be, which is an impermissible basis for adverse employment actions.” Discrimination based on sexual orientation inherently involves sex stereotyping because it is based on gendered norms regarding what genders someone “should” be attracted to.

Finally, following the Seventh Circuit’s logic in Hively, the Second Circuit characterized sexual orientation discrimination as a form of associational sex discrimination, as it is “based on an employer’s opposition to association between particular sexes and thereby discriminates against an employee based on their own sex.” The court pointed to precedent involving associational race discrimination, such as the U.S. Supreme Court’s decision in Loving v. Virginia, which forbid employers from discriminating against an employee because of their involvement in an interracial relationship. Here, the Second Circuit found, “we see no principled basis for recognizing a violation of Title VII for associational discrimination based on race but not on sex.”

This historic decision means that New York workers will now have federal, state, and city-level protections against sexual orientation discrimination in the workplace, and—in light of the recent revisions to the New York City Human Rights Law’s definitions of sexual orientation and gender identity—LGBT New Yorkers now have some of the strongest workplace legal protections in the country. If your employer has discriminated against you based on your sexual orientation, contact The Harman Firm, LLP.

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