By: Karen L. Piper
On February 26, 2018 the Second Circuit Court of Appeals ruled that discrimination based on sexual orientation is prohibited by Title VII. Zarda v. Altitude Express, Inc., Case No. 15-3775. The Court ruled “sexual orientation discrimination constitutes a form of sex discrimination ‘because of … sex’ in violation of Title VII.”
The case was brought by Donald Zarda, a sky-diving instructor who was fired in 2010 after an incident with a female customer. Zarda claimed he was fired for telling the customer that he was gay. His employer said it fired Zarda because Zarda had touched the customer inappropriately during a tandem jump.
Zarda sued for sexual orientation discrimination and gender stereotype discrimination under Title VII and New York state law. The district court dismissed his Title VII claim in 2014 because at that time the Second Circuit Court of Appeals, consistent with the consensus among the other federal appeals courts, and the position of the Equal Employment Opportunity Commission (“EEOC”), had ruled that Title VII did not prohibit discrimination on the basis of sexual orientation.
Zarda’s claim of sexual orientation discrimination under New York law was tried. The jury agreed with the employer. Zarda then appealed the court’s previous dismissal of his Title VII claim. A three-judge panel of the Second Circuit denied the appeal because it was bound by Second Circuit precedent. Zarda then asked the entire Second Circuit to review his case. The Second Circuit ruled 10-3 that sexual orientation discrimination should be treated as a subset of sex discrimination under Title VII because:
- sex is necessarily a factor in sexual orientation discrimination which is based on the sex of the employee and the sex of the individuals to whom the employee is attracted;
- being attracted to same-sex individuals is contrary to gender stereotypes (that employees should be attracted to opposite sex individuals); and
- sexual orientation discrimination is a form of associational discrimination because it is based on the employee’s association with same-sex individuals. Associational discrimination has been applied in the context of race, often involving an employee’s marriage or other association with an individual of a different race. Associational discrimination is expressly prohibited by the Americans with Disabilities Act. The ADA prohibits discrimination against an employee because the employee has a family member with a disability.
Three judges dissented. These judges agreed that “individuals [should] not be subject to workplace discrimination on the basis of sexual orientation.” However, based on the “historical context” of 1964 when Title VII was passed, these judges could not conclude that Congress had prohibited sexual orientation discrimination when it passed Title VII. The majority opinion observed that the same was true of other forms of discrimination, such as sexual harassment and hostile work environment, both of which claims were initially rejected by the courts as not being prohibited by Title VII, but ultimately recognized by the United States Supreme Court as being prohibited by Title VII.
The Zarda opinion is binding in the Second Circuit (covering New York, Connecticut and Vermont). It is consistent with an April 2017 opinion from the Seventh Circuit Court of Appeals (covering Illinois, Indiana and Wisconsin) which also ruled that Title VII prohibits discrimination on the basis of sexual orientation. It is contrary to a March 2017 opinion by the Eleventh Circuit Court of Appeals (covering Alabama, Florida and Georgia) which decided Title VII does not prohibit sexual orientation discrimination. The plaintiff in the Eleventh Circuit case asked the U.S. Supreme Court to review that decision. The Court declined in December 2017.
Due to the divergence of opinions on this issue among the federal appeals courts and among various federal departments and agencies (the Department of Justice filed an amicus brief in support of the employer in Zarda; the EEOC filed an amicus brief in support of the employee; the Office of Federal Contract Compliance Programs mandates nondiscrimination on the basis of sexual orientation by federal contractors), it is widely expected that the U.S. Supreme Court will have to decide whether Title VII prohibits discrimination on the basis of sexual orientation.
This article was written by Karen L. Piper, who is Chair of the Legal Affairs Committee of Detroit SHRM, and a Member of Bodman PLC, which represents employers, only, in Workplace Law. Ms. Piper can be reached at Bodman’s Troy office at (248) 743-6025 or firstname.lastname@example.org. For further information, go to: http://www.bodmanlaw.com/attorneys/karen-l-piper.
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