Second Circuit Joins Seventh Circuit, EEOC in Holding that Anti-Gay Discrimination is Sex Discrimination

Miles & Stockbridge P.C.
Contact

With its en banc decision on February 26, 2018 in Melissa Zarda v. Altitude Express, Inc., No. 15‐3775 (2d Cir. Feb. 26, 2018), the Second Circuit Court of Appeals became the second federal appeals court to hold that sexual orientation discrimination is prohibited sex discrimination under Title VII of the federal Civil Rights Act of 1964, which expressly prohibits discrimination based on sex, but not sexual orientation. Last year in Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. Apr. 4, 2017), the Seventh Circuit became the first federal appeals court to decide that sexual orientation is a protected class. Zarda also aligns with a 2015 EEOC decision which held that allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex, further widening the circuit split on this issue. Indeed, both the Eleventh Circuit and DOJ have recently taken the opposite position that sexual orientation is not protected by Title VII.
 
The case was originally brought by Donald Zarda, a skydiving instructor who alleged he was fired in violation of Title VII and New York state law by his former employer, Altitude Express, on the basis of his sexual orientation after he told a customer he was gay. The company maintained that Zarda’s behavior in inappropriately touching a customer during a base jump led to his termination, not his sexual orientation. Zarda died in 2014, but his estate and family have continued the case on his behalf.  

After losing at the trial level, Zarda appealed his case to the Second Circuit in 2015, which initially affirmed the trial court’s decision. However, the Court decided to reconsider the case upon Plaintiff-Appellants’ request for an en banc review in May 2017. Relying largely on recent Supreme Court holdings, the Zarda Court ultimately broke from Second Circuit precedent and held that anti-gay discrimination in the workplace is prohibited under Title VII.  

In reaching its decision, the Court concluded that a worker’s sex is necessarily a factor in discrimination based on sexual orientation and that sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination. The Court determined that sexual orientation discrimination is based on stereotypes “about how members of a particular gender should be, including to whom they should be attracted.” The Court alternatively held that sexual orientation discrimination is a form of associational discrimination motivated by the employer’s aversion to associations between employees of the same sex.  
    
Despite recent cases extending Title VII protections to anti-gay discrimination, the reality is that most jurisdictions continue to interpret “sex” to mean biological gender rather than sexual orientation and decline to extend Title VII protections to sexual orientation. The Supreme Court has also declined to take up the issue so far, rejecting a similar case out of Georgia this past December. There is recent speculation, given DOJ’s strong opposition to expanding Title VII protections to sexual orientation and recent changes within the EEOC, that the EEOC’s position might shift to be more in line with the DOJ or be overridden by the DOJ in the coming months. While the issue continues to unfold, employers in the Second Circuit and states where sexual orientation is already a protected class should remain compliant with their anti-discrimination and anti-harassment policies in accordance with applicable federal and state law. 

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Miles & Stockbridge P.C. | Attorney Advertising

Written by:

Miles & Stockbridge P.C.
Contact
more
less

Miles & Stockbridge P.C. on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide