Second Circuit Rules Title VII Prohibits Sexual Orientation Discrimination

Author:Mr Christopher Durham and Mark Stanisz
Profession:Duane Morris LLP

On February 26, 2018, the United States Court of Appeals for the Second Circuit, sitting en banc, held in Zarda v. Altitude Express, Inc. that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation as discrimination "because of... sex."

The Second Circuit (with jurisdiction over Connecticut, New York and Vermont) joins the Seventh Circuit (with jurisdiction over Illinois, Indiana and Wisconsin) as the second U.S. Court of Appeals to hold that Title VII prohibits sexual orientation discrimination. The Equal Employment Opportunity Commission (EEOC) has also recognized sexual orientation as a protected class under Title VII. To date, only the Eleventh Circuit (with jurisdiction over Alabama, Florida and Georgia) has rejected Title VII protections on the basis of sexual orientation. It is unclear whether the Supreme Court will address this issue in the near future, although the Second Circuit's opinion in Zarda deepens the circuit split and could increase the likelihood of Supreme Court review.

Case Background

Donald Zarda, a gay man, was a skydiving instructor at defendant Altitude Express who participated in tandem skydives with customers. A female customer claimed that Zarda touched her in an inappropriate manner and "disclosed his sexual orientation to excuse his behavior." After the customer's boyfriend complained to Zarda's supervisor, he was fired. Zarda denied inappropriately touching the customer, and claimed he was terminated because of his reference to his sexual orientation.

The trial court rejected Zarda's Title VII sexual orientation discrimination claim because then-binding Second Circuit case law provided that a gender stereotype could not be grounded on one's sexual orientation. A three-judge panel of the Second Circuit affirmed because it, too, was obliged to apply then-binding case law. The Second Circuit granted a rare hearing en banc (meaning a case heard before all judges of the court) to potentially revisit controlling law.

The Court's Analysis

The wide-ranging majority opinion in Zarda expressly overrules prior decisions rejecting Title VII protection on the basis of sexual orientation. Among the justifications proffered by the court for its holding, which in many respects mirror the EEOC's position on the issue, are:

"[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...

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