Second Circuit Court of Appeals Rules That Title VII Prohibits Sexual Orientation Discrimination
February 27, 2018
Just this week, the U.S. Court of Appeals for the Second Circuit (which is the federal appeals court that covers cases that originate in the U.S. District Courts in New York) issued a decision holding that discrimination based on sexual orientation is prohibited under Title VII of the Civil Rights Act. On its face, Title VII prohibits employment discrimination based on five protected categories: race, color, religion, national origin, and sex. This Second Circuit ruling now places sexual orientation on the same level of protection as those categories historically covered under Title VII.
The case, Zarda v. Altitude Express, involved a skydiving instructor, Donald Zarda, who brought a claim for sex discrimination under Title VII after he was terminated by Altitude Express in 2010. Zarda alleged that he was terminated because of his sexual orientation after he disclosed to a customer that he was gay. The case was dismissed in the lower courts based on a line of earlier Second Circuit decisions (including the Second Circuit decision issued in 2000 in Simonton v. Runyon) which held that sexual orientation discrimination was not covered under Title VII. In this recent ruling, the Second Circuit noted that “the legal framework for evaluating Title VII claims has evolved substantially,” requiring a reversal of its precedent and a holding that Title VII’s sex discrimination provision extends to discrimination on the basis of sexual orientation.
There is a split among both the courts and federal agencies regarding this issue. The Justice Department, under President Trump, intervened in the case and argued that sexual orientation should not be included as a protected category under Title VII. This put the Justice Department at odds with the U.S. Equal Employment Opportunity Commission, which has in recent years interpreted Title VII's sex discrimination prohibition to include a prohibition on sexual orientation discrimination. As a result of this decision, there is also now a split among the federal courts. The Second Circuit is the second federal Court of Appeals to find sexual orientation to be encompassed under Title VII's sex discrimination prohibition, which conflicts with the opinion of the Eleventh Circuit. These conflicting rulings could be enough to prompt the U.S. Supreme Court to take up the issue at some point in the future.
Although this ruling is not a significant change for New York employers, who have been subject to the prohibitions against sexual orientation discrimination under the New York Human Rights Law for many years, employers in New York now face increased exposure and liability under federal law for alleged discrimination based on sexual orientation.