The U.S. Court of Appeals for the Second Circuit (covering Vermont, Connecticut and New York) recently held that sexual orientation discrimination constitutes discrimination “because of sex” in violation of Title VII of the Civil Rights Act of 1964.  Although state laws in New York, Vermont and Connecticut already prohibit discrimination based on sexual orientation, employers in these states must be cognizant that a claim may now be pursued in federal court on this basis.  More importantly, the Second Circuit’s decision deepens the nation-wide split on whether sexual orientation discrimination is prohibited by Title VII, making it more likely for the U.S. Supreme Court to take up the issue.

In Zarda v. Altitude Express, Inc., a skydiving instructor claimed he was fired because he is gay.  In 2010, he filed suit in federal district court arguing, among other things, that the firing violated Title VII.  The district court judge ruled against him, applying the Second Circuit’s then-current precedent that discrimination based on sexual orientation was not prohibited under Title VII.  He appealed to the Second Circuit, which reversed its prior circuit precedent, and held that “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.” Notably, the Court refused to address the issue of whether discrimination against transgender individuals is prohibited by Title VII, another area of disagreement among the federal courts.  

The Second Circuit now joins the Seventh Circuit (covering Indiana, Illinois and Wisconsin) in holding that Title VII’s ban on discrimination “because of sex” covers sexual orientation discrimination. (See Clark Hill’s April 5, 2017 e-alert regarding the Seventh Circuit’s Hively decision).  The Second and Seventh Circuit’s decisions are consistent with the Equal Employment Opportunity Commission’s position that Title VII’s prohibition against sex discrimination encompasses discrimination on the basis of sexual orientation.  Nonetheless, a stark circuit split is developing on this issue.  On March 10, 2017, the Eleventh Circuit Court of Appeals (covering Alabama, Georgia and Florida) held that Title VII does not protect against sexual orientation discrimination.  Many believe it is only a matter of time before the Supreme Court addresses the issue.

Employers in jurisdictions covered under the Second and Seventh Circuit’s jurisdiction should review their equal employment opportunity and harassment policies to ensure that sexual orientation is not only included as a protected group (as each of the States in those jurisdictions have so held), but also that sexual orientation discrimination, along with other forms of harassment and discrimination, are addressed in harassment prevention training.  In addition, employers nationwide should consult with legal counsel when dealing with issues of sexual orientation discrimination, as the law continues to evolve in this area and varies by jurisdiction.