On February 26, 2018, in a landmark decision continuing the expansion of Title VII’s protection, the Second Circuit Court of Appeals became the second federal appeals court to hold that Title VII prohibits discrimination on the basis of sexual orientation in the workplace. The decision in Zarda v. Altitude Express, Inc. aligns the Second Circuit with the Seventh Circuit in the ongoing evolution of Title VII and its application to sexual orientation discrimination. Both cases involved en banc decisions by the entire court.

Donald Zarda was a former skydiving instructor who alleged that he was fired due to his sexual orientation. He filed an EEOC charge claiming that his discharge was on account of his sexual orientation and gender in violation of Title VII, and repeated the claim in federal court, claiming that he was discharged because his behavior did not conform to gender stereotypes.  Zarda sometimes disclosed to his female clients that he was gay as he prepared them for tandem skydiving jumps during which he would be strapped in tightly to the client.  Although Zarda thought that approach would ease concerns about any inappropriate behavior, one of his clients and her boyfriend complained to his former employer.  The company fired Zarda shortly thereafter.

After acknowledging that the EEOC has maintained since 2015 that sexual orientation discrimination is protected by Title VII and the Seventh Circuit’s same conclusion, the Second Circuit held that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination,” overturning is own prior decisions. The Court’s decision focused on three main factors.  First, the Court concluded that sexual orientation discrimination is a function of sex, comparable to sexual harassment and other perceived evils previously recognized as violating Title VII.  Second, “sexual orientation discrimination is predicated on assumptions about how persons of a certain sex can or should be.”  The Court held that Title VII has long been interpreted (including by the Supreme Court) as prohibiting employment decisions based on stereotypes.  Sexual orientation discrimination, the Court found, is grounded in the concept of gender stereotypes—“real men should date women”—and the Court therefore ruled such discrimination as a subset of sex discrimination.  Finally, sexual orientation discrimination is a form of associational discrimination that is in violation of Title VII, similar to anti-miscegenation policies.  According to the Court, an employee’s sexual orientation is rooted in his or her association with someone of the same sex, which is itself discrimination based on the employee’s own sex.

It is unclear at this time whether Zarda will be appealed to the Supreme Court.  As courts’ interpretation of Title VII continues to evolve, employers in jurisdictions that recognize a cause of action for sexual orientation discrimination should stay vigilant about ensuring that their employees are not subjected to such discrimination in the workplace.  This is especially true on the federal level for employers in states covered by the Second Circuit (New York, Vermont, and Connecticut) and Seventh Circuit (Illinois, Indiana, and Wisconsin) decisions.  And employers in these and other states should remain mindful of state and local laws that provide similar protections.  We encourage employers to review their policies and practices to ensure that they comply with federal, state and local laws in this emerging area of workplace law.