United States: Second Circuit Finds Sexual Orientation Discrimination Actionable Under Title VII

Last week, in Zarda v. Altitude Express, Inc., the United States Court of Appeals for the Second Circuit broke with its own precedent, holding that "sexual orientation discrimination constitutes a form of discrimination 'because of sex,' in violation of Title VII."1 The Second Circuit now joins the Seventh Circuit and the Equal Employment Opportunity Commission ("EEOC") in recognizing such a claim.

Facts and Procedural History

Donald Zarda was a gay man who worked as a sky- diving instructor at Altitude Express. Given that his job often required him to participate in tandem skydives, strapped to his clients, he sometimes told his female clients about his sexual orientation in order to make them feel more at ease.2 In June 2010, Zarda made such a comment to a female client with whom he was preparing for a tandem skydive.3 After the jump was successfully completed, the client told her boyfriend that Zardahad inappropriately touched her and then disclosed his sexual orientation to excuse his behavior.4 The boyfriend told Zarda's boss and Zarda was fired shortly thereafter.5

Zarda brought a lawsuit in federal court alleging, inter alia, sexual stereotyping in violation of Title VII and sexual orientation discrimination in violation of New York law. Defendants moved for summary judgment, arguing that "under Title VII, a gender stereotype cannot be predicated on sexual orientation."6 Defendants' motion for summary judgment was granted as to the Title VII claim, while the New York law claim could proceed.7

Shortly thereafter, the EEOC decided Baldwin v. Foxx, holding that "sexual orientation is inherently a 'sex-based consideration[.]'"8 Accordingly, "allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex.

Following the EEOC's decision in Baldwin, Zarda moved to have his Title VII claim reinstated, but the district court denied the motion.10 Defendants ultimately prevailed on the New York law sexual orientation discrimination claims.11 Zarda appealed, arguing that Second Circuit precedent should be overturned in light of the EEOC's reasoning in Baldwin, which demonstrated that prior Second Circuit cases were incorrectly decided. The Second Circuit ordered an en banc hearing to revisit prior decisions holding sexual orientation discrimination claims are not cognizable under Title VII. 12 As a result of the hearing, the court overturned its prior precedent, ruling that Title VII "extends to all discrimination 'because of...sex' and sexual orientation discrimination is an actionable subset of sex discrimination."13

The Second Circuit remanded the matter to the district court. Although Zarda had lost his state sexual orientation discrimination claim at trial, he was not prevented from moving forward with his federal claim because the state law claim was tried under a higher standard of causation than is required under Title VII.14

Second Circuit's Decision

Sexual Orientation as a Function of Sex

With regard to the scope of Title VII, the Second Circuit focused its inquiry on the text of the statute, particularly the phrase "because of ...sex."15 The Second Circuit concluded that applying Title VII to "traits that are a function of sex is consistent with the Supreme Court's view that Title VII covers not just 'the principal evil[s] Congress was concerned with when it enacted' the statute in 1964, but also 'reasonably comparable evils' that meet the statutory requirements."16 Accordingly, the question for the court became whether an employee's sex is a "motivating factor" in discrimination based on sexual orientation.17

In reaching the conclusion that sexual orientation discrimination is motivated, at least in part by sex, and "is thus a subset of sex discrimination," the Second Circuit first considered the nature of sexual orientation discrimination.18 The court found that in order to identify the sexual orientation of an individual, one must first know the sex of the person and that of the people to whom the individual is attracted.19 "Because one cannot fully define a person's sexual orientation without identifying his or her sex, sexual orientation is a function of sex."20

The Court then engaged in a "comparative test" to determine whether sexual orientation is a function of sex by asking whether the employee would have been treated differently "but for that person's sex."21 Here, the court held that the proper comparison is not between a woman who is attracted to other women and a man who is attracted to other men, but rather, for example, a comparison of a woman and a man, both of whom are attracted to men.22 This application of the comparative test makes clear that if a man who is subject to an adverse employment action because he is attracted to men would have been treated differently if he had been a woman attracted to men, then sexual orientation becomes a function of sex and, by extension, "sexual orientation discrimination is a subset of sex discrimination."23

Gender Stereotyping

The Court went on to view the relationship between sexual orientation and sex "through the lens of gender stereotyping," and found another basis for its conclusion.24 Relying on the Supreme Court's decision in Price Waterhouse v. Hopkins, the Second Circuit found that employees who experience adverse employment actions as a result of their "employer's generalizations about members of their sex," or "as a result of their employer's animus toward their exhibition of behavior considered to be stereotypically inappropriate for their gender," may have a claim under Title VII.25 In the sexual orientation context, it becomes clear that an employer who acts on the basis that men cannot or should not be attracted to men, but takes no actions against women who are attracted to men, acts on the "basis of gender."26 "[S]ame-sex orientation 'represents the ultimate case of failure to conform' to gender stereotypes."27

The Second Circuit made clear that its conclusion that moral beliefs regarding sexual orientation are based on sex did not presuppose that those beliefs are animated by an "evil motive."28 The court simply held that any belief that depends, even in part, on sex "is an impermissible basis for employment decisions."29

Associational Discrimination

Finally, the Second Circuit examined the issue of associational discrimination. Here, the court relied on its prior decision in Christiansen v. Omicom Group, Inc., where the court held that Title VII prevents employers from discriminating against employees because of their association with persons of a particular sex.30 Thus, if an employer disapproves of close friendships between individuals of opposite sexes, and fires a female employee because she has male friends, it is clear that the female employee has been discriminated against "because of her own sex."31 The court held that there is no reason to carve out same-sex romantic relationships from this analysis. Thus, "if a male employee married to a man is terminated because his employer disapproves of same-sex marriage, the employee has suffered associational discrimination based on his own sex."32

Practical Impact

Many state and local fair employment practice statutes, including the New York State and New York City Human Rights Laws, explicitly prohibit discrimination on the basis of sexual orientation. So, for many employers, this decision will change little in terms of sexual orientation discrimination. A significant difference, however, is that sexual orientation discrimination claims may now be brought in federal court under a standard of causation that is not as stringent as that found in state law.


1 -- F.3d --, 2018 WL 1040820, at *2, Docket No. 15-3775 (2d Cir., February 26, 2018).

2 Id.

3 Id.

4 Id.

5 Id.

6 Id., (quoting Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000)).

7 Id.

8 EEOC Decision No. 0120133080, 2015 WL 4397641, at * 5(July 15, 2015) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 242 (1989)).

9   Id., at *10.

10 --F.3d--, 2018 WL 1040820, at *2.

11 Id.

12 Id.

13 Id., at *20.

14 Id.

15 Id., at *4.

16 Id., at *5 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998)).

17 Id.

18 Id.

19 Id. (citing Hively v. Ivy Tech Cmty. Coll., S. Bend, 853 F.3d 339, 358 (7th Cir. 2017)),

20 Id.

21 Id. (quoting City of Los Angeles, Dept. of Water and Power v. Manhart, 435 U.S. 702, 711(1978)).

22 Id., at *9

23 Id.

30 Id., at *15 (citing Christiansen v. Omnicom Group, Inc., 852 F.3d 195, 204 (2d. Cir. 2017)).

31 Id.

32 Id. (citing Holcomb v. Iona College, 521 F.3d 130 (2d. Cir. 2008)).

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