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2nd Cir Rules Sexual Orientation Discrimination Covered Under Title VII

On February 27, 2018 by Schnader in Labor and Employment

By Jo Bennett

On Monday, in Zarda v. Altitude Express, Inc., the Court of Appeals for the Second Circuit joined the Seventh Circuit in holding that sexual orientation discrimination is banned under Title VII of the Civil Rights Act of 1964.

Donald Zarda was a skydiving instructor employed at Altitude Express. He brought a discrimination charge with the EEOC alleging he was fired after disclosing to a client that he was gay. He subsequently brought a federal lawsuit alleging sex stereotyping in violation of Title VII and sexual orientation discrimination in violation of New York law. The District Court granted summary judgment to the defendants on the Title VII claims.

In resolving this appeal, the court cited evolving legal doctrine, including the EEOC’s 2015 decision holding that sexual orientation is a sex-based consideration as well as Supreme Court decisions that Title VII prohibits discrimination based on traits that are a function of sex, such as life expectancy and non-conformity with gender norms. The court was further guided by the Supreme Court’s view that Title VII covers not only the “principal evils” that Congress was concerned with when it enacted the Civil Rights Act, but also “reasonably comparable evils” as well. Applying that view, the court ruled that sexual orientation discrimination constitutes a form of discrimination “because of … sex,” in violation of Title VII.

Both the Department of Justice and the EEOC filed amicus briefs in the Zarda case. DOJ argued that Title VII does not extend to sexual orientation discrimination, while the EEOC argued that it does. Meanwhile, and as we discussed here, the Supreme Court in December declined to hear a similar case out of the Eleventh Circuit, in effect leaving in place a decision that Title VII does not cover sexual orientation discrimination.

In addition to the Circuit and Executive Branch splits, a patchwork of state and local laws governs sexual orientation discrimination as well.  As we have advised before, employers should continue to enforce policies that protect LGBTQ workers.