The Second Circuit U. S. Court of Appeals has recently decided that Title VII of the Civil Rights Act of 1964 protects against discrimination based on a person’s sexual orientation. In the case Zarda v. Altitude Express, Inc., the Second Circuit appeals court in New York, sitting en banc, overturned its prior precedent-setting decisions determining that claims for sexual orientation discrimination were not cognizable under Title VII.
Zarda Court Held That Sexual Orientation Discrimination Is a Subset of Sex Discrimination
Title VII makes it unlawful for an employer to discriminate against any employee with respect to the individual’s “compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin ….” In Zarda, the Second Circuit appeals court determined that sexual orientation discrimination is a subset of sex discrimination and that claims for sexual orientation discrimination could therefore proceed under Title VII.
The lawyers at Kilgore & Kilgore handle a wide variety of employment discrimination claims. If you have suffered from sex discrimination by your employer, click here Contact Kilgore & Kilgore to connect with an employment lawyer for a free review of the facts of your situation.
The New York District Court Had Dismissed Zarda’s Sex Discrimination Claim
Zarda, a gay man, was a skydiving instructor. He told a female client with whom he was preparing for a tandem skydive that he was gay in order to make her more comfortable while strapped to his body. The client alleged that Zarda inappropriately touched her and disclosed his sexual orientation to try to excuse his conduct. After the jump, the client told her boyfriend about Zarda’s alleged behavior. The boyfriend informed Zarda’s boss who then fired Zarda.
Zarda filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) and subsequently filed a lawsuit in federal district court in the Eastern District of New York. In his lawsuit, Zarda asserted a claim for sexual orientation discrimination under New York law and a Title VII discrimination claim based on sex stereotyping. The district court, relying on the Second Circuit’s prior cases, granted summary judgment for the employer on Zarda’s Title VII claim. After losing at trial on his sexual orientation discrimination claim under New York law, Zarda appealed. Eventually the full Second Circuit heard the matter en banc, vacated the district court’s summary judgment, and remanded the case.
The EEOC and the Seventh Appeals Court Have Held That Sexual Orientation Discrimination is Sex Discrimination
While Zarda’s lawsuit was pending before the federal district court, in 2015, the EEOC held for the first time in the Baldwin matter that an allegation of sexual orientation discrimination is an allegation of sex discrimination under Title VII. In addition, in 2017, the Seventh Circuit appeals court sitting en banc held in the Hively case that sexual orientation discrimination is a form of sex discrimination for purposes of Title VII. Click here to see our previous blog on that ruling: Hively Sex Discrimination Case.
The Legal Doctrine Regarding Sexual Orientation Discrimination is Evolving
In Zarda, the Second Circuit appeals court relied on the evolving legal doctrine regarding sexual orientation discrimination found in the EEOC’s Baldwin decision and in Hively. The Zarda court agreed with both the EEOC and the Seventh Circuit appeals court that a claim for sexual orientation discrimination is a claim for discrimination “because of sex” under Title VII. The U.S. Department of Justice in Zarda disagreed with the EEOC and argued that a claim for sexual orientation discrimination is not cognizable under Title VII.
The Second Circuit appeals court concluded that sexual orientation discrimination is motivated, at least in part, by an individual’s sex because sex is a factor in sexual orientation. Sexual orientation, according to the appeals court, is a function of sex. Thus, sexual orientation discrimination is comparable to sexual harassment, gender stereotyping, and “other evils” that violate Title VII because of an individual’s sex.
The Second Circuit appeals court further reasoned that sexual orientation is a proxy for sex because an employee would be treated differently “but for” his or her sex. A gay man who is discriminated against because he is attracted to men would have been treated differently had he been a woman attracted to men. Thus, the court concluded that sexual orientation discrimination is a “subset of sex discrimination.”
Gender Stereotypes Are Another Form of Sex Discrimination
The appeals court also found that sexual orientation discrimination was rooted in gender stereotypes, another form of discrimination “because of sex.” The appeals court further determined that sexual orientation discrimination is a type of associational discrimination based on an employer’s opposition to an association between individuals of a particular sex in violation of Title VII.
The dissent in Zarda, although supportive of the prohibition of sexual orientation discrimination, argued that in 1964, Congress did not prohibit sexual orientation discrimination in Title VII. Instead, Congress chose to address specific social problems of the time in Title VII, but that did not include sexual orientation discrimination.
Federal Circuit Courts of Appeals Are Split over Sex Discrimination Legal Doctrine
There is a split in the federal circuit appeals courts regarding whether or not sexual orientation discrimination is actionable under Title VII. The Seventh Circuit in Hively and the Second Circuit in Zarda have held that a claim for sexual orientation discrimination is a claim for sex discrimination and can proceed under Title VII. The Eleventh Circuit, on the other hand, has held the opposite. Thus, at some point in the future, the U.S. Supreme Court may have an opportunity to decide the issue.
Sex Discrimination Occurs in Many Different Types of Situations
Perhaps you suffer from sex stereotyping or sex discrimination and have experienced an adverse employment action in the workplace. If so, click here Contact an Employment Law Attorney at Kilgore & Kilgore for a free evaluation of the facts of your case.