The 2nd U.S. Circuit Court of Appeals has reversed course, ruling on February 26 that discrimination based on sexual orientation amounts to discrimination based on sex in violation of Title VII of the Civil Rights Act of 1964.
Previously, a panel of the 2nd Circuit had declined the opportunity to reconsider past precedent and continued to hold that sexual orientation discrimination isn’t actionable under Title VII. The 2nd Circuit, now with the full bench, revisited the issue and reversed itself and its past precedents by unequivocally holding that discrimination based on sexual orientation is discrimination based on sex in violation of Title VII.
Donald Zarda, now deceased, was a skydiving instructor formerly employed by Altitude Express. Zarda was a homosexual and often disclosed his sexual orientation to patrons. Following his termination by Altitude Express, he asserted he was fired because of his sexual orientation, while Altitude asserted that he was let go because of customer complaints.
Zarda filed a lawsuit in the U.S. District Court for the Eastern District of New York alleging he was discriminated against because of his sexual orientation under both New York law and Title VII.
The district court, following 2nd Circuit precedents, dismissed Zarda’s Title VII claim, holding that discrimination based on sexual orientation doesn’t amount to discrimination based on sex under Title VII. On appeal—and despite a 2015 Equal Employment Opportunity Commission decision that held to the contrary—a panel of the 2nd Circuit affirmed the district court. The 2nd Circuit then took the unusual step of agreeing to convene en banc (with all judges present) to reconsider the precedents relied on by the district court.
Sexual Orientation Is Based on, Well, Sex
In a passionate 69-page opinion, which contains a number of additional concurring and dissenting opinions, the 2nd Circuit overruled its own prior precedents and tossed out the district court’s decision on the Title VII claim. The 2nd Circuit now holds that Title VII prohibits discrimination on the basis of sexual orientation: “Because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.” Noting that legal doctrine evolves over time, the majority of the 2nd Circuit held that:
Title VII’s prohibition on sex discrimination applies to any practice in which sex is a motivating factor. . . . Sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account. Sexual orientation discrimination is also based on assumptions of stereotypes about how members of a particular gender should be, including to whom they should be attracted. Finally, sexual orientation discrimination is associational discrimination because an adverse employment action that is motivated by the employer’s opposition to association between members of particular sexes discriminates against an employee on the basis of sex.
The 2nd Circuit now joins the 7th Circuit in holding that Title VII prohibits discrimination based on sexual orientation. The 11th Circuit declined the opportunity to decide such a question in 2017, and no similar case has gone to the U.S. Supreme Court, but it is likely a sexual orientation discrimination case will be heard by the Supreme Court in the near future.
Angelo D. Catalano is an attorney with Coughlin & Gerhart, LLP, in Binghamton, New York, and contributor to New York Employment Law Letter. He can be reached at firstname.lastname@example.org or 607-723-9511.