Second Circuit is Second in Prohibiting Sexual Orientation Discrimination

March 22, 2018

Lía Fiol-Matta, Esq. and Ty Hyderally, Esq.

In a groundbreaking decision, the Second Circuit Court of Appeals ruled that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on sexual orientation, becoming the second federal appeals court to issue such an opinion in less than a year. The Seventh Circuit, which hears cases from Wisconsin, Illinois and Indiana, was the first appellate court to rule that sexual orientation is protected from discrimination in the workplace under Title VII in Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7^th Cir. 2017).

In Zarda v. Altitude Express, Inc., No. 15-3775, 2018 WL 1040820 (2d Cir. Feb. 26, 2018), the Second Circuit, which covers New York, Connecticut and Vermont, overturned decades of precedent ruling that sexual orientation discrimination by employers is prohibited by Title VII’s bar on discrimination “because of … sex”. This position is in tandem with the US Equal Employment Opportunity Commission’s (EEOC) position that discrimination claims necessarily state a sex-based discrimination claim (Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 WL 4397641 [July 15, 2015]).

Zarda, a homosexual male skydiving instructor, was fired by Altitude Express after he disclosed his sexual orientation to a female customer. He had regularly shared this information with female clients, to alleviate concerns they may have about being in close physical proximity while strapped to his body for skydiving. The customer complained to the employer about this disclosure and Zarda was fired, despite the fact that other male skydiving instructors often joked about being strapped to women in tandem dives. Zarda filed a discrimination suit claiming he was terminated sue to his sexual orientation. The trial court denied his claim based on precedent that Title VII did not protect employees from discrimination based upon their sexual orientation. On appeal, the Second Circuit panel of three judges also denied his claim yet later agreed to rehear the appeal en banc (comprising all 13 judges). The Court then concluded, in a 10-3 decision, that “sexual orientation discrimination is a subset of sex discrimination”.

The Court identified three primary grounds for its conclusion, namely that: 1) sexual orientation and a person’s sex cannot be seen separately as sexual orientation is defined in relation to one’s sex and the sex of whom one is attracted to; 2) sexual orientation discrimination is based upon  gender stereotypes that dictate how a person should exist, based on their sex, including to what sex a person should be attracted to; and 3) sexual orientation discrimination is a form of associational discrimination that is motivated by an employer’s disapproval or opposition to association between members of a particular sex.

There is dissension in the circuits.  For example, in Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11^th Cir.), cert denied, 138 S. Ct. 557 (2017), the Eleventh Circuit denied to recognize a claim of sexual orientation discrimination under Title VII.  Thus, there is a split between the 2^nd and 7^th Circuits and the 11^th Circuit.

While the Second Circuit’s Zarda decision only applies to employers in three states, it is one of the most influential Circuits in the country. Thus, this ruling is likely a sign of upcoming similar rulings from other federal courts and makes it highly likely that the Supreme Court will rule on this matter in the near future as well.

Of course, one should look beyond the Federal law to determine statutory coverage in the state they reside in.  Most states and municipalities have laws and regulations that prohibit sexual orientation discrimination in the workplace. For example, the New Jersey Law Against Discrimination (LAD) protects employees from discrimination and harassment in the workplace because of their sexual orientation or gender identity. It protects the rights of New Jersey employees based on characteristics including “marital status, civil union status, domestic partnership status, affectional or sexual orientation, [and] gender identity or expression.” (N.J.S.A. § 10:5-12). While the tide continues turning toward increased protections under federal law, LGBTQ employees in New Jersey can rest assured that they have protections under New Jersey state law.

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