On February 26, 2018, the Second Circuit, in Zarda v. Altitude Express, Inc., No. 15-3775, 2018 WL 1040820 (2d Cir. Feb. 26, 2018), held that sexual orientation discrimination is actionable sex discrimination under Title VII of the 1964 Civil Rights Act (“Title VII”). In doing so, the Court became the second federal appellate court to recognize such an action, joining the Seventh Circuit 7^th circuit. Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339 (7th Cir. 2017). This decision serves to ensure a growing split in the circuits that may well see a test before the United States Supreme Court.

Donald Zarda, a homosexual skydiving instructor employed by Altitude Express, was fired after disclosing his sexual orientation to a female client, as he often did to quell anxiety a female client may have had about being strapped to a male instructor for a tandem jump. His reassurances were not well received, and he was terminated after his employer received a complaint about the incident.

Zarda filed suit in the Eastern District of New York alleging that his termination was motivated by discrimination based on sex-stereotyping under Title VII and sexual-orientation discrimination in violation of New York law. The district court, following 2nd Circuit precedent, principally Simonton v. Runyon, 232 F. 3d 33 (2d. Cir. 2000), granted summary judgement in favor of the defendants, holding that Zarda failed to establish a Title VII gender stereotyping claim as a matter of law.

Shortly after the court’s decision, the Equal Employment Opportunity Commission (“EEOC”) decided Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 WL 4397641, (July 15, 2015), reversing its prior precedence and holding that sexual orientation discrimination claims necessarily state a sex-based discrimination claim. In response, Zarda moved to have his case reinstated. The district court denied the motion, finding 2nd Circuit precedence, not the EEOC’s Baldwin decision, binding. Zarda’s remaining claim for sexual orientation-based discrimination under New York state law went to trial, where Zarda lost.

Zarda appealed summary judgment of his federal sexual orientation claim. On appeal the 2^nd Circuit agreed with Zarda and overturned standing precedents. Finding that “the legal framework for evaluating” discrimination claims “has evolved substantially,” the Court held that Title VII prohibits discrimination on the basis of sexual orientation, because such discrimination is a form of sex-based discrimination. In a thorough discussion of the history of Title VII, the Court concluded that sexual orientation based discrimination is subset of sex discrimination on three primary grounds:

1. Sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted. Essentially, one cannot discriminate based on sexual orientation without taking a person’s sex into account, and thus sex is a motivating factor in such discrimination.
2. Sexual orientation discrimination is based on gender stereotypes about how individuals of a certain sex should be, including to which sex they should be attracted. As the court stated unequivocally, “any belief that depends, even in part, on sex, is an impermissible basis for employment decisions. This is true irrespective of whether the belief is grounded in fact … or lacks ‘a malevolent motive.’”
3. Sexual orientation discrimination is associational discrimination, akin to long prohibited race discrimination, motivated by an employer’s opposition to association between members of particular sex.

The case represents an interesting reflection on the continuing reevaluation of the bounds of federal discrimination law in the workplace, and is a valuable primer for anyone interested in the history of this evolution. With recent decisions in other circuits and updated guidance from the EEOC the issue is ripe for United States Supreme Court review. While the ultimate outcome of Zarda and companion cases is unclear, prudent employers should take the opportunity to review their policies and procedures with experienced counsel to ensure proper handling of complaints and investigations.