Another Circuit Court Finds that Sexual Orientation Discrimination is Sex Discrimination
This week, the Second Circuit Court of Appeals, which hears appeals from federal courts in Connecticut, New York, and Vermont, held that discrimination based on sexual orientation violates Title VII of the Civil Rights Act of 1964 (“Title VII”).
Zarda v. Altitude Express
In Zarda v. Altitude Express,FN1 the estate of Daniel Zarda, a former skydiving instructor, alleged he was fired after a customer complained after he told her that he was gay. Zarda argued that Title VII, which bars workplace discrimination on the basis of sex, race, color, national origin and religion, also prohibits discrimination based on sexual orientation.
The Court initially ruled against Zarda in April 2017, but he was granted a rehearing before the full appeals court. In its majority opinion,FN2 the Court wrote that “Sexual orientation discrimination—which is motivated by an employer’s opposition to romantic association between particular sexes—is discrimination based on the employee’s own sex.” Looking to the text of Title VII, the majority concluded that Title VII’s protection against discrimination “because of . . . sex” extends to sexual orientation because “sex is necessarily a factor in sexual orientation:” FN3
The Court also held that Congress’ failure to protect expressly sexual orientation under Title VII does not weaken the conclusion that the broad language that Congress did use was intended to protect not only the “principal evil,” but also “comparable evils.” Thus, the majority reasoned, the protection afforded to employees against discrimination because of their “sex” was not meant to be exclusive, and necessarily includes protection for sexual orientation as well.
Takeaway
The federal courts have progressively broadened the scope of Title VII h over the years. The Second Circuit’s decision follows the Seventh Circuit’s similar decision on this issue last year.FN5 Although a Circuit split still exists on the issue (which may set up a possible fight before the Supreme Court), there appears to be a growing trend toward inclusion of sexual orientation discrimination into Title VII’s protections.FN6
As such, even for those companies in states where the federal courts have not made analogous decisions, it is prudent to anticipate continued and increased protections for employees’ sexual orientation in the near future when making decisions relating to gay and lesbian employees. To minimize the risk of claims of any type of discrimination, companies should carefully assess whether discipline and discharge decisions are motivated by legitimate, nondiscriminatory reasons before taking action.
Footnotes:
FN1 - Zarda v. Altitude Express, Inc., No. 15-03775, 2018 WL 1040820 (2d Cir., Feb. 26, 2018).
FN2 - Ten judges agreed on the result of the case, although five disagreed with the majority’s reasoning. Three dissented from the outcome.
FN3 – Zarda, 2018 WL at *5. The majority further reasoned as follows:
Because one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex. Indeed sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted. Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected”.
Id. at *6.
FN6 – Notably, this trend is supported by many large companies. A group of 50 companies and organizations, including Microsoft Corp., Google, and Viacom Inc., along with legal aid, civil and gay rights organizations, and labor unions, supported Zarda’s estate in the appeal, arguing in amicus briefs that sexual orientation discrimination is antithetical to business interests and civil rights.