Second Circuit Rules Title VII Prohibits Sexual Orientation Discrimination

The Second Circuit recently became the second federal court of appeals to definitively rule that discrimination in employment on the basis of sexual orientation is prohibited by Title VII of the Civil Rights Act of 1964. In a 10-3 decision in Zarda v. Altitude Express, 883 F.3d 100 (2d Cir. 2018), the Second Circuit held that sexual orientation discrimination is a subset of sex discrimination under Title VII, and is therefore unlawful.

In Zarda, Donald Zarda was a gay, male skydiving instruction for Altitude Express. Zarda occasionally told his female clients that he was gay to relieve their concerns about being strapped to a man during a tandem skydive. The boyfriend of one of Zarda’s female clients complained to Zarda’s boss at Altitude Express that Zarda touched his girlfriend inappropriately and that he disclosed his sexual orientation to excuse his behavior. Zarda was fired shortly thereafter. Zarda eventually filed suit in federal district court. Though Zarda died in a skydiving accident before trial, his estate continued the litigation on his behalf.

The district court ruled against Zarda, basing its decision on the Second Circuit decisions in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) and Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005), in which the appellate court held that Title VII protections do not extend to sexual orientation discrimination. However, Judge Robert Katzmann, writing for the majority in Zarda, noted the “changing legal landscape that has taken shape in the nearly two decades since Simonton issued,” and the court in Zarda, sitting en banc, overruled its decisions in Simonton and Dawson.

The court reasoned that “firing a man because he is attracted to men is a decision motivated, at least in part, by sex.” Since Title VII prohibits discrimination “because of . . . sex,” the court concluded that “sex is necessarily a factor in sexual orientation” and sexual orientation discrimination is an impermissible subset of sex discrimination.

Through its holding, the Second Circuit is only the second federal court of appeals to determine that Title VII prohibits sexual orientation discrimination. The Seventh Circuit made a similar determination in Hively v. Ivy Tech Cmty. College of Ind., 853 F.3d 339 (7th Cir. 2017). However, the Eleventh Circuit refused to extend Title VII protections to sexual orientation in Evans v. Georgia Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017).

Though the Second Circuit covers only the states of New York, Connecticut, and Vermont, this split between circuit courts makes it more likely that the Supreme Court will take up a case to ultimately resolve this issue.

Employers within the jurisdictions of the Second and Seventh Circuits (the Seventh Circuit covers Wisconsin, Illinois, and Indiana) should make any necessary updates to their policies and handbooks relating to sexual orientation. Additionally, employers in states outside the Second and Seventh Circuits may yet be subject to specific state or local bans on sexual orientation discrimination. All employers should keep a close watch on future court decisions and legislative changes to the current status of sexual orientation discrimination in their jurisdiction.