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On February 26, 2018, the Second Circuit Court of Appeals (which covers the states of New York, Connecticut and Vermont) held that Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination See  Zarda v. Altitude ExpressNo. 15-3775 (2d Cir. Feb. 26, 2018).   In a 10-3 decision, the full Second Circuit reversed an April 2017 decision in which a three-judge panel of the Court declined to recognize sexual orientation discrimination under Title VII.

In the Zarda case, a skydiving instructor named Donald Zarda alleged he was fired by his employer, Altitude Express, because he is gay.    In 2010, Zarda filed suit in federal district court in New York arguing, among other things, that the firing violated Title VII.    According to Zarda, Title VII’s prohibition against workplace discrimination on the basis of “sex” also prohibits sexual orientation discrimination.

A district court judge ruled against Mr. Zarda, applying the Second Circuit’s then-current precedent. Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000).   The Second Circuit in Simonton declined to hold that discrimination based on sexual orientation was prohibited under Title VII.

Mr. Zarda brought a motion to reconsider before the district court, when, during the pendency of the district court action, the Equal Employment Opportunity Commission (EEOC) issued a decision in Baldwin v. Foxx, No. 01220133080 (July 16, 2015).   In Baldwin, the EEOC decided that discrimination based on sexual orientation is prohibited by Title VII.

The district court denied Mr. Zarda’s motion, holding Simonton was binding precedent.   Mr. Zarda appealed to the Second Circuit.   Mr.  Zarda passed away in 2014, during the pendency of the appeal.   His estate carried on the action, arguing Simonton should be reversed.

The Second Circuit’s majority opinion in the Zarda case, written by Chief Judge Robert Katzmann and joined either in full or in part by eight other judges, ruled that discrimination on the basis of sexual orientation was illegal for three reasons. The first, is that sexual orientation is partly defined by one’s sex and Title VII explicitly prohibits discrimination on the basis of sex.  The second reason is that the category of sexual orientation discrimination is based on stereotypes about how members of a given gender should behave or, in this case, who they should be attracted to.  This reasoning pulls on a precedent set by the 1989 case Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which found employers could not discriminate against individuals who do not conform to conventional gender norms.  Third, the court classified discrimination on the basis of sexual orientation as associational discrimination, found to be unlawful in the case Holcomb v. Iona College, 521 F.3d 130 (2008) which stated, “Where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.”

In Zarda, three members of the Second Circuit dissented. Four members of the court issued concurring opinions, including José A. Cabranes, who wrote just seven sentences the in the 163-page document, culminating in the following:

“Zarda’s sexual orientation is a function of his sex. Discrimination against Zarda because of his sexual orientation therefore is discrimination because of his sex, and is prohibited by Title VII. That should be the end of the analysis.” 

 Among the circuit courts, the Seventh Circuit of Appeals was the first to rule that sexual orientation discrimination is prohibited by Title VII, as we previously blogged. See Hively v. Ivy Tech Cmty. College of Ind.,853 F.3d 339, 362 (7th Cir. 2017) (en banc).

The Second Circuit has now joined the Seventh Circuit in holding that Title VII prohibits sexual orientation discrimination.

Note that the Eleventh Circuit also recently considered this issue and ruled that Title VII does not expressly protect against sexual orientation discrimination.

This circuit split, could result in the issue being reviewed by the United States Supreme Court.

Stay tuned.