The Second Circuit has finally answered the question of whether Title VII of the Civil Rights Act of 1964 protects against sexual orientation-based discrimination

By Douglas Lipsky

In an en banc decision in Zarda v. Altitude Express, Inc., the Second Circuit held Title VII does in fact protect against this form of discrimination.

Here is some background about the case.

The Plaintiff is Donald Zarda, a gay male skydiving instructor. He brought a sex discrimination claim under Title VII after Altitude Express fired him, alleging he was fired for failing to conform to male sex stereotypes because he referenced his sexual orientation to female clients. He claims he made these references to assuage any concerns they had about being strapped to a man for a tandem skydive.

Relying on Second Circuit precedent in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) and Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005), the District Court for the Eastern District of New York dismissed his claim, holding that Title VII does not recognize discrimination claims based on sexual orientation.  He then appealed to the Second Circuit and a three judge panel affirmed the district court decision and declined Zarda’s request to overturn Simonton and Dawson because a three-judge panel “lacks the power to overturn Circuit precedent.”  The Second Circuit, shortly thereafter, agreed to rehear the matter en banc: all of the judges sitting on the Second Circuit would decide the appeal.

What did the Second Circuit say?

In analyzing if Title VII prohibits sexual orientation-based discrimination, the court focused on the statute’s prohibition of discrimination “because of . . . sex” and stated that “the critical inquiry for a court assessing whether an employment practice is ‘because of . . . sex’ is whether sex was ‘a motivating factor.’”

The court went on to explain that “the most natural reading of the statute’s prohibition on discrimination ‘because of . . . sex’ is that it extends to sexual orientation discrimination because sex is necessarily a factor in sexual orientation.”  The court expanded on that analysis by observing sexual orientation refers to a person’s predisposition or inclination toward sexual activity or behavior with other males or females, such that “one cannot fully define a person’s sexual orientation without identifying his or her sex.”

The Second Circuit’s analysis is partially rooted in the “comparative” test the U.S. Supreme Court established in L.A. Department of Water & Power v. Manhart, 435 U.S. 702 (1987). There, the Supreme Court explained that if, for example, a lesbian employee is denied a promotion because she has romantic or sexual relationships with women, the decision would be “because of” the employee’s sex if a similar decision would not have been made where the employee was a male.

The Second Circuit’s analysis is also rooted in the notion that Title VII prohibits sex stereotyping and that “sexual orientation discrimination is predicated on assumptions about how persons of a certain sex can or should be, which is an impermissible basis for adverse employment actions.”  The court concluded that “when, for example, an employer acts on the basis of a belief that men cannot be attracted to men, or that they must not be, but takes no such action against women who are attracted to men, the employer has acted on the basis of [sex].”

What about the other Circuits?

Two other Courts of Appeal have recently addressed this issue and reached different conclusions: the Eleventh Circuit declined to recognize a sexual orientation discrimination claim under Title VII in Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir.), cert. denied, 138 S. Ct. 557 (2017); while the Seventh Circuit, sitting en banc in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017), was the first federal appeals court to hold that “discrimination on the basis of sexual orientation is a form of sex discrimination.”

What does this mean for the future?

With the growing split among the Courts of Appeal, it is looking increasingly likely the U.S. Supreme Court will take up this issue.

If you believe that you are a victim of sexual orientation discrimination, please do not hesitate to contact us. Lipsky Lowe LLP has experience trying all types of employment law cases.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.