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Second Circuit To Take Second Look at Sexual Orientation Discrimination Under Title VII

By Harrison C. Paige

On April 18, 2017, the U.S. Circuit Court of Appeals for the Second Circuit affirmed the U.S. District Court for the Eastern District of New York’s decision in Zarda v. Altitude Express, dismissing Donald Zarda’s sexual orientation discrimination claims brought under Title VII of the Civil Rights Act of 1964 (“Title VII”). In reaching its decision, the Second Circuit relied on its 2000 decision in Simonton v. Runyon, where the court held that Title VII does not protect against discrimination based on sexual orientation. However, on May 25, 2017, the Second Circuit granted en banc review in Zarda, signaling that the Second Circuit may be ready to reexamine Simonton and revisit its position on Title VII sexual orientation discrimination claims.

In Simonton, Dwayne Simonton, a postal worker, was harassed because of his sexual orientation. The harassment was so severe that Simonton suffered a heart attack as a direct result of the abuse. While the Second Circuit’s decision noted the severity of the harassment and rebuked the behavior, the court nonetheless held that Title VII’s prohibition against discrimination based on “sex” does not include discrimination based on sexual orientation and dismissed Mr. Simonton’s Title VII sexual orientation discrimination claims. The precedent set by Simonton has prevented countless individuals from bringing sexual orientation discrimination claims under Title VII, leaving individuals stranded in their search for justice.

Ten years after Simonton, Altitude Express terminated Donald Zarda, a gay skydiving instructor. Zarda disclosed his sexual orientation to a female customer, Rosanna Orellana, whose boyfriend then called Altitude Express and complained about Zarda’s being gay. Zarda was terminated shortly thereafter, which Altitude Express claimed was because he “failed to provide an enjoyable experience for their customers.” Zarda filed suit against Altitude in the U.S. District Court for the Eastern District of New York, which dismissed all of his Title VII claims, citing Simonton. Zarda then appealed to the Second Circuit. The Second Circuit affirmed the district court’s decision, refusing to revive or reevaluate Zarda’s Title VII sexual orientation discrimination claims because, as a three-judge circuit panel, it lacked the authority to overturn circuit precedent.

The Second Circuit recently granted en banc review of Zarda, meaning that all eleven active judges on the Second Circuit bench will hear the case together, which gives the court power to overturn previous Circuit precedent. Typically, U.S. Circuit Courts create panels of three appellate judges, who hear and rule on an appeal. When a hearing is granted en banc, however, the entire bench of appellate judges hears the case. En banc review is usually reserved for matters of pressing public importance or situations where old case law, like Simonton, must be reevaluated because of new law, a decision by a higher court (like the U.S. Supreme Court), or other external circumstances.

The decision to review Zarda en banc comes only months after the Second Circuit’s March 26, 2017 decision in Christiansen v. Omnicom Group, Inc., which we reported on on April 3, 2017. In Christiansen, the Second Circuit reversed a district court’s dismissal of Matthew Christiansen’s Title VII gender stereotyping claim and remanded the case for further consideration. However, because of Simonton, the court did not revive any of Christiansen’s Title VII sexual orientation discrimination claims.

In recent years, there has been immense pushback against decisions like Simonton, as many district courts struggle to separate sexual orientation discrimination from discrimination based on sex, since the sex of the individual who is attracted to the same sex is the issue. For example, if “Mark” is attracted to “Jonathan,” then the discrimination against Mark by his employer is because Mark is a man who is attracted to another man – if Mark was a woman attracted to men, there would be no discrimination. Therefore, the discrimination is because of Mark’s sex. Bound, however, by their Circuit court’s precedent, district courts are powerless to render conflicting decisions.

As part of its review, the Second Circuit asked the Equal Employment Opportunity Commission (“EEOC”) to weigh in on whether Title VII’s sex discrimination protections apply to cases of sexual orientation discrimination. Specifically, the court asked the EEOC: “Does Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of sexual orientation through its prohibition of discrimination ‘because of … sex’?” Long before Zarda, the EEOC took the position that “Title VII’s prohibition of sex discrimination [forbids] any employment discrimination based on gender identity or sexual orientation.” Thus, unsurprisingly, the EEOC’s response to the Second Circuit was in the affirmative. The EEOC pointed out that, in the 17 years since Simonton, “several courts and the [EEOC] itself have found that sexual orientation discrimination is inextricably linked to gender.” Consequently, the EEOC urged the Second Circuit to overturn Simonton, stating that the precedent that Simonton set “is unworkable in practice and leads to absurd results.”

So far, only the Seventh Circuit—which encompasses districts in Illinois, Indiana, and Wisconsin—interprets Title VII to cover sexual orientation discrimination. On April 4, 2017, the Seventh Circuit ruled en banc in Hively v. Ivy Tech Community College that Title VII included sexual orientation discrimination, overturning its own precedent. We reported on this historic decision. If the Second Circuit allows Zarda’s Title VII sexual orientation discrimination claims to move forward, it would become the second U.S. Circuit Court to recognize sexual orientation discrimination under Title VII. The Zarda case has followed a similar trajectory to Hively and, hopefully, it will end with the same result.

We hope that the Second Circuit adopts the EEOC’s recommendation and overturns the archaic, damaging, and illogical Simonton precedent. In the meantime, if you believe your employer has treated you unfairly because of your sexual orientation, contact The Harman Firm, LLP, for a free assessment of your claims.


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