United States: Full Second Circuit To Revisit Its Position On Sexual Orientation As A Protected Class Under Title VII

Executive Summary: While the Seventh Circuit definitively has held that sexual orientation discrimination is discrimination "because of sex" and, therefore, a violation of Title VII of the Civil Rights Act of 1964, as amended (as reported by these authors on April 25, 2017), the other Circuits continue to debate this issue. Specifically, (as previously reported by these authors on April 3, 2017), the Second Circuit in Christiansen v. Omnicom and Eleventh Circuit in Evans v. Georgia Regional Hospital held they were bound by prior precedent that sexual orientation is not protected by Title VII, despite their skepticism as to whether that precedent remains good law. On April 18, 2017, the Second Circuit reaffirmed that position in Zarda v. Altitude Express. The Zarda court emphasized that absent action by the Second Circuit sitting en banc, it was bound by Simonton v. Runyon, which 17 years ago held that sexual orientation is not protected by Title VII. In a rare move, the Second Circuit has granted rehearing en banc limited to the issue of whether "...Title VII of the Civil Rights Act of 1964 prohibit[s] discrimination on the basis of sexual orientation through its prohibition of discrimination 'because of...sex.'"

Background: Zarda was a skydiving instructor. In 2010, he told a female client that he was gay. She told her boyfriend, who complained to Zarda's employer, Altitude Express. Altitude Express terminated Zarda's employment and Zarda sued, claiming he was terminated because of his sexual orientation in violation of, inter alia, Title VII.

The U.S. District Court for the Eastern District of New York (EDNY) granted summary judgment on Zarda's Title VII claim. The EDNY held both that Title VII does not prohibit sexual orientation discrimination and that Zarda had failed to establish a gender stereotyping claim under Price Waterhouse v. Cooper. However, just before the EDNY ruled on summary judgment, the Equal Employment Opportunity Commission (EEOC) issued its decision in Baldwin v. Foxx that sexual orientation discrimination is discrimination "because of sex" within the meaning of Title VII. On that basis, Zarda moved for reconsideration. The court denied the motion, noting that Baldwin is contrary to Simonton's binding precedent. Zarda's trial proceeded on his state law claims, and the jury found for the former employer.

Zarda appealed to the Second Circuit, in relevant part, on the grounds that Simonton should be overturned. However, the Second Circuit in Christiansen had already held that absent an en banc decision by the court to the contrary, Simonton remained binding. Therefore, while the Zarda court acknowledged the Seventh Circuit's decision in Hively, it "decline[d] Zarda's invitation to revisit [Second Circuit] precedent." Moreover, unlike in Christiansen, the Zarda court declined to remand the case on a sex stereotyping theory because Zarda had not challenged summary judgment on that claim. Thus, the Zarda court acknowledged that "Zarda may receive a new trial only if Title VII's prohibition on sex discrimination encompasses discrimination based on sexual orientation – a result foreclosed by Simonton."

On May 25, 2017, Zarda got the second chance he was seeking. The Second Circuit granted en banc review of his appeal on the limited question of whether sexual orientation discrimination is included in Title VII's proscription of discrimination "because of sex." Oral argument is set for September 26, 2017. If this question is answered in the affirmative, Simonton will be overruled, marking another victory for the LGBTQ community. Given the strongly worded concurring opinion in Christiansen advocating for the Second Circuit to do so, and the given the infrequency with which the Second Circuit grants en banc review, this seems likely.

It should also be noted that a petition for rehearing en banc in Christiansen remains pending before the Second Circuit (as reported by these authors on May 8, 2017).

Bottom Line: Since the Seventh Circuit's decision in Hively, the Circuits have been split on the issue of whether Title VII protects sexual orientation and have been faced with the decision of whether prior precedent excluding sexual orientation from Title VII's protection should be upheld. A decision by the Second Circuit in favor of Zarda would result in two of the eleven Circuits recognizing a cause of action for sexual orientation discrimination under Title VII. While many states, cities and counties have enacted laws prohibiting sexual orientation discrimination in employment, a large number have not done so. Consequently, the Circuit court decisions on this issue are of great significance to employers and the LGBTQ community, particularly in the Circuits covering states where no such protections presently exist.

It is more important than ever for employers operating in multiple states to be cognizant of the varying state and federal laws when it comes to LGBTQ discrimination. As a general and practical matter, it is recommended that all employers, irrespective of the status of the law in the state(s) in which they operate, have policies and procedures in place to prohibit discrimination against and harassment of employees based on sexual orientation, gender identity, gender expression and transgender status. Additionally, employers should put in place complaint procedures that employees can use to notify the employer if they experience such discrimination or harassment. All complaints should be thoroughly investigated and resolved.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions