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March 12, 2018

Second Circuit Provides Protection for Discrimination Based on Sexual Orientation

In a landmark en banc decision issued on February 26, 2018, the Second Circuit ruled that Title VII prohibits discrimination on the basis of sexual orientation, becoming only the second circuit court to do so. In Zarda v. Altitude Express, Inc. case no. 15-3775, a now-deceased skydiving instructor brought suit against his former employer, Altitude Express, Inc., alleging he was terminated because he failed to conform to male sex stereotypes—or more specifically, because he was gay.

In writing for the majority, Chief Judge Katzmann held that "Title VII's prohibition on sex discrimination applies to any practice in which sex is a motivating factor." He explained, "Sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one's sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account." Discrimination based on sexual orientation is based on "assumptions or stereotypes" regarding individuals of a particular gender and how they should act, which includes expectations of which gender an individual "should" be attracted to.

The dissent, authored by Judge Lynch, believes the court went too far. Although Judge Lynch admittedly would be "delighted" if Congress added sexual orientation to the list of protected classes under Title VII, he observed that "Congress did no such thing." He highlighted the history of Title VII and the clear absence of any discussion regarding sexual orientation. In fact, he argued that the prohibition of discrimination based on sex was intended to secure equal rights for women, with no thought given to sexual orientation. Judge Lynch opined that if Congress wanted Title VII to protect against sexual orientation discrimination, it would have added that as a protected class. He emphasized that changing social policy is Congress's duty and exceeds the authority of the courts. "[L]egislators are entitled to pick and choose which problems to address, and how far to go in addressing them," he wrote. "The court needs to "respect the choices made by Congress about which social problems to address and how to address them."

In response to the dissent, the majority explained that Congress could not "anticipate the full spectrum of employment discrimination that would be directed at the protected categories." As a result, according to the majority, it "falls to the courts to give effect to the broad language that Congress used." Chief Judge Katzmann compared this situation to male-to-male sexual harassment, which is not explicitly prohibited in Title VII, but was held to be prohibited by the Supreme Court in 1998. He explained that the reach of the statute is not limited just because Congress may not have contemplated it.

This decision aligns the Second Circuit with the Seventh Circuit Court of Appeals in Chicago, which made a similar ruling on April 4, 2017. The Second Circuit's ruling also follows the US Equal Employment Opportunity Commission's position that sexual orientation is protected under Title VII. The EEOC actually submitted an amicus brief in support of its position in the Zarda case. Interestingly, the US Department of Justice submitted an amicus brief on the other side, arguing that Title VII does not prohibit sexual orientation discrimination.

Although aligned with the Seventh Circuit, the Second Circuit's Zarda decision is at odds with a recent decision from the Eleventh Circuit, which held on March 10, 2017, in Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017) that sexual orientation is not protected under Title VII.

In December 2017, the Supreme Court declined the opportunity to decide this issue when it rejected Jameka Evans's appeal of the Eleventh Circuit's decision referenced above. With the emergence of a widening circuit split and a divide between the EEOC and the DOJ, this issue is becoming harder for the Supreme Court to ignore.

Now that we have a third circuit court opinion on the question, we should expect to see this issue before the Supreme Court at some point, although perhaps not before other circuit courts weigh in on it. There is no doubt the Zarda decision is important because it provides individuals with the ability to bring a federal Title VII lawsuit alleging sexual orientation bias in the Second Circuit (covering New York, Vermont, and Connecticut) but, practically speaking, since each of these states has laws that include sexual orientation as a protected category, employers operating in these states should already have policies in place that prohibit such discrimination.

Should you have questions regarding the information presented in this alert, please contact Laurence B. Oppenheimer, Chair of the firm's Labor & Employment Practice Area, at


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