2nd Circuit Joins The List Of Federal Courts Holding That Sexual Orientation Discrimination Is A Violation Of Title VII

April 30, 2018 / Writing and Speaking

On February 26, 2018, the Second Circuit Court of Appeals issued an en banc decision in Zarda v. Altitude Express, Inc. No. 15-3775, holding that sexual orientation discrimination violates Title VII of the Civil Rights Act.

Facts

Zarda was a skydiving instructor who brought a discrimination claim under Title VII alleging he was fired from his job at Altitude Express, Inc., because he failed to conform to male sex stereotypes by referring to his sexual orientation. While it is well settled that gender stereotyping violates Title VII’s prohibition on discrimination “because of . . . sex”, the Second Circuit previously held that sexual orientation discrimination claims, including claims that being gay or lesbian constitutes non-conformity with a gender stereotype, are not cognizable under Title VII.

The U.S. District Court for the Eastern District of New York granted summary judgment to defendants because Zarda had failed to show that he had been discriminated against on the basis of his sex. On July 15, 2015, the EEOC decided Baldwin v. Fox, Decision No. 0120133080, 2015 WL 4397641, holding that sex discrimination includes sexual orientation discrimination. Consequently, Zarda asked the District Court to reinstate his Title VII claim. The District Court declined to do so citing the Second Circuit Opinion in Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000). Zarda filed his appeal, and a panel of the Second Circuit affirmed the District Court’s summary judgment ruling.

Analysis

The Second Circuit convened a rehearing en banc to consider whether Title VII prohibits discrimination on the basis of sexual orientation such that Second Circuit decisions/precedents to the contrary should be overruled.

En banc, the Court held that sexual orientation discrimination constitutes a form of discrimination “because of…sex” in violation of Title VII and therefore overturned its prior rulings on this issue in Simonton and Dawson v. Bumble & Bumble, 398 F.3d 211, 217-23 (2d Cir. 2005).

The Court noted that in 2015 the EEOC held that “Sexual orientation is inherently a ‘sex based consideration’; accordingly an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” The Court noted that since the EEOC’s decision in Baldwin v. Fox (July 15, 2015), that two circuits have revisited the question. The Eleventh Circuit (in March 2017) and the Seventh Circuit (in April 2017) conducted en banc hearings and held that discrimination on the basis of sexual orientation is a form of sex discrimination. The Court also stated that, “in deciding whether Title VII prohibits sexual orientation discrimination, we are guided, as always, by the text and, in particular, by the phrase ‘because of . . . sex,’. However, in interpreting this language, we do not write on a blank slate. Instead, we must construe the text in light of the entirety of the statute as well as relevant precedent. As defined by Title VII, an employer has engaged in ‘impermissible consideration of . . . sex . . . in employment practices’ when ‘sex . . . was a motivating factor for any employment practice,’ irrespective

of whether the employer was also motivated by “other factors.” 42 U.S.C. §2000E-2(m). Accordingly, the critical inquiry for a court assessing whether an employment practice is ‘because of . . . sex’ is whether sex was ‘a motivating factor.’” The Second Circuit noted that in Griggs v. Duke Power Co., the Supreme Court held that Title VII prohibits not just discrimination based on sex itself, but also discrimination based on traits that are a function of sex, such as life expectancy, Manheart, 435 U.S. at 711 and non-conformity with gender norms, PriceWaterhouse, 490 U.S. at 250-51.

The Second Circuit concluded that sexual orientation discrimination is motivated at least in part, by sex and is thus a subset of sex discrimination. Therefore, looking

at the text of Title VII the “most natural reading of the statute’s prohibition on discrimination ‘because of . . . sex’ is that it extends to sexual orientation discrimination because sex is necessarily a factor in sexual orientation. The statutory reading is reinforced by considering the question from the perspective of sex stereotyping because sexual orientation discrimination is predicated on assumptions about how persons of a certain sex can or should be, which is an impermissible bases for adverse employment actions. In addition, looking at the question from the perspective of associational discrimination, sexual orientation discrimination—which is motivated by an employer’s opposition to romantic associations between particular sexes—is discrimination based on the employee’s own sex.”

Learning Point: This case illustrates a growing split amongst the Circuits as to what qualifies as “sex” discrimination, and whether or not it includes sexual orientation discrimination. While the Supreme Court has declined to review this issue, it appears that such a review is inevitable due to the continued split amongst the Circuits.

  • Chicago

    Illinois 60603

    10 South LaSalle Street

    Chicago, Illinois 60603

    T: 312.855.1010 TF: 800.826.3505 F: 312.606.7777 Office Managing Partner: Dennis D. Fitzpatrick

  • New York

    New York 10005

    28 Liberty Street 39th Floor

    New York, New York 10005

    T: 212.805.3900 TF: 800.826.3505 F: 212.805.3939 Office Managing Partner: Carl M. Perri

  • Mission Viejo

    California 92691

    27285 Las Ramblas

    Suite 200

    Mission Viejo, California 92691

    T: 949.260.3100 TF: 800.826.3505 F: 949.260.3190 Office Managing Partner: Ian R. Feldman

  • Florham Park

    New Jersey 07932

    100 Campus Drive

    Florham Park, New Jersey 07932

    T: 973.410.4130 TF: 800.826.3505 F: 973.410.4169 Office Managing Partner: Carl M. Perri

  • Michigan City

    Indiana 46360

    200 Commerce Square

    Michigan City, Indiana 46360

    T: 219.262.6106 TF: 800.826.3505 F: 312.606.7777 Office Managing Partners: Paige M. Neel, Kimbley A. Kearney

  • Appleton

    Wisconsin 54914

    4650 W. Spencer Street

    Appleton, Wisconsin 54914

    T: 920.560.4658 TF: 800.826.3505 F: 920.968.4650 Office Managing Partner: Patrick L. Breen

  • Stamford

    Connecticut 06902

    68 Southfield Avenue

    2 Stamford Landing Suite 100

    Stamford, Connecticut 06902

    T: 203.921.0303 TF: 800.826.3505 F: 212.805.3939 Office Managing Partner: Matthew J. Van Dusen

  • Tampa

    Florida 33609

    4830 West Kennedy Boulevard, One Urban Center

    Suite 600

    Tampa, Florida 33609

    T: 813.509.2578 TF: 800.826.3505 F: 312.606.7777 Office Managing Partner: Dennis D. Fitzpatrick

  • San Francisco

    California 94111

    100 Pine Street

    Suite 1250

    San Francisco, California 94111

    T: 415.745.3598 TF: 800.826.3505 F: 949.260.3190 Office Managing Partner: Ian R. Feldman

  • Houston

    Texas 77019

    2929 Allen Parkway

    American General Center, Suite 200

    Houston, Texas 77019

    T: 346.229.4612 TF: 800.826.3505 F: 312.606.7777 Office Managing Partner: Ramy P. Elmasri

  • Boca Raton

    Florida 33434

    7777 Glades Road

    Suite 405

    Boca Raton, Florida 33434

    T: 561.765.5305 TF: 800.826.3505 F: 312.606.7777 Office Managing Partner: Dennis D. Fitzpatrick