The question of whether Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination has led to a split among the circuit courts of appeals, with the Seventh Circuit holding that Title VII prohibits sexual orientation discrimination and the Eleventh Circuit ruling that it does not. On February 26, 2018, the Second Circuit weighed in, aligning with the Seventh Circuit in holding that the law protects employees from discrimination based on their sexual orientation.

In Zarda v. Altitude Express, Inc., 2018 U.S. App. LEXIS 4608 (2d Cir. 2018), the court, overturning its prior decision in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), revived a sex-bias claim brought on behalf of the late Donald Zarda, a former skydiving instructor who claimed that he was fired after a female customer complained to his employer that Zarda revealed to her that he was gay.

Title VII explicitly prohibits discrimination on the basis of sex, race, color, religion and national origin. In a divided decision, the Zarda court held that Title VII's proscription of sex discrimination applies to "any practice in which sex is a motivating factor." Zarda, 2018 U.S. App. LEXIS 4608, at *61. The majority went on to explain that "[s]exual orientation discrimination is a subset of 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." Id. (emphasis in original).

Employment decisions, the Zarda court wrote, cannot be predicated on "assumptions or stereotypes about how members of a particular gender should be, including to whom they should be attracted," Id. The court concluded that, viewed through the lens of gender stereotyping, it was clear that discrimination based on sexual orientation is a product of sex stereotyping and therefore warrants inclusion in Title VII's proscription of sex discrimination. The court also viewed sexual orientation discrimination through the lens of associational discrimination, which, it noted, the Second Circuit in prior cases has held protects an employee who marries someone of a different race. See id., at *44 (citing Holcomb v. Iona College, 521 F.3d 130, 139 (2d Cir. 2008)).

The Seventh Circuit dealt with the question of sexual orientation discrimination in a similar manner. In Hively v. Ivy Tech Cmty. Coll., S. Bend, 853 F.3d 339 (7th Cir. 2017), which involved a female part-time professor who was denied a fulltime position on six separate occasions because of her attraction to other females, the Seventh Circuit concluded that sexual orientation discrimination was a form of sex discrimination. The Second Circuit noted in the Zarda decision that it was persuaded by the Seventh Circuit's reasoning in Hively, stating, "the Seventh Circuit concluded that, as alleged, Hively would not have been denied a promotion but for her sex, and therefore sexual orientation is a function of sex. From this conclusion, it follows that sexual orientation discrimination is a subset of sex discrimination." Zarda, 2018 U.S. App. LEXIS 4608, at *28-9.

The majority decision acknowledged that sexual orientation discrimination was not the "principal evil" that Congress considered when passing Title VII but that the law has since been interpreted to include "reasonably comparable evils," including discrimination based on sexual orientation. Id., at *61-62.

Bottom line

The Second Circuit's ruling widens the circuit split on this issue. Until the Supreme Court issues a ruling, employers should treat sexual orientation as protected under Title VII.

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