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February 2018

Kaitlin A. Bair

Second Circuit Rules that Sexual Orientation Discrimination is Prohibited by Title VII

Yesterday, in a groundbreaking decision, the Second Circuit ruled that Title VII applies to claims of sexual orientation discrimination in Zarda v. Altitude Express. This ruling represents a growing judicial consensus that sexual orientation discrimination is prohibited by Title VII.

The plaintiff, Donald Zarda, alleged that he was terminated after revealing his sexual orientation, which constituted discrimination in violation of Title VII. Although Title VII does not explicitly prohibit discrimination on the basis of sexual orientation, it does prohibit discrimination based on sex. Many activist organizations have long argued that the prohibition on sex discrimination should encompass sexual orientation discrimination as well.

In its ruling the Second Circuit agreed, explaining that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.” In order to “identify the sexual orientation of a particular person,” an employer must “know the sex of the person and that of the people to whom he or she is attracted . . . We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.”

The Court also based its decision on the fact that gender stereotyping is prohibited under Title VII, which bars employers from adversely treating employees for their failure to conform to gender norms. The Court noted that homosexuality “represents the ultimate case of failure to conform to gender stereotypes.”

The Court also discussed the principle of “associational discrimination,” stating that an employee who is discriminated against because of his or her associations with a partner of the same sex has experienced sex discrimination.

With the Zarda decision, the Second Circuit has joined the Seventh Circuit, dozens of lower courts, and the Equal Employment Opportunity Commission, all of whom have held that Title VII bars anti-gay workplace discrimination. However, courts across the country remain split on the issue. Indeed, the Eleventh Circuit has adopted the opposite position.

Eventually, the Supreme Court will have to resolve the scope of Title VII’s protections for LGBTQ employees. However, the defendants in Zarda have indicated that they won’t appeal yesterday's decision. Thus, for the time being, the Zarda ruling will remain the law of the Second Circuit, which covers New York, Connecticut, and Vermont.

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