Second Circuit: Sexual Orientation Discrimination is Prohibited Under Title VII


All Employers with CT, NY, and VT Employees


February 26, 2018


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The Second Circuit Court of Appeals joins the Seventh Circuit in stating that Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination. Historically, the circuit courts have not included sexual orientation as a protected status under sex discrimination, which is prohibited by Title VII, but the Second Circuit acknowledged that the social and legal landscape surrounding LGBT rights have evolved.

In Zarda v. Altitude Express, Inc., Zarda, a skydiving instructor, was terminated from his position for alleged sexual harassment. He often told female skydiving clients he was gay to ease discomfort about being in close proximity to a man when tandem skydiving.  On one occasion, a client claimed Zarda touched her inappropriately and used his sexual orientation to disguise his behavior. The employer terminated Zarda as result; however, Zarda alleged that the termination was motivated by his sexual orientation.

The Second Circuit hearing the case en banc stated that:

  • Sexual orientation is, at least in part, motivated by or a function of sex, and therefore is a subset of sex discrimination, which is explicitly prohibited under Title VII.
  • Title VII also prohibits discrimination based on gender stereotypes. The court stated that sexual orientation discrimination is related to gender stereotypes, which dictate what gender is “appropriate” for a man or woman to be attracted to.
  • Associational discrimination is another violation of Title VII. Employers are prohibited from discriminating against employees based on their association with someone of the same sex, because it necessarily constitutes discrimination of the employee’s own sex.

This decision furthers a developing split in authority: where the Seventh and Second Circuits have now ruled that sexual orientation discrimination is prohibited under Title VII, the Eleventh Circuit has taken the opposite stance. Although the Supreme Court may address this split of authority in the future, sexual orientation is already a protected class under applicable state and local laws and employers must take care to avoid discrimination in the workplace.

Action Items

  1. Review policies and procedures for compliance with this ruling.
  2. Have managers trained on prohibited discriminatory practices.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

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