Second Circuit Holds Title VII Prohibits Discrimination on the Basis of Sexual Orientation "Because of . . . Sex."

On February 26, 2018 the United States Court of Appeals for the Second Circuit held that Title VII protects against all discrimination “because of . . . sex” and that sexual orientation discrimination is a subset of sex discrimination. In Estate of Zarda v. Altitude Express, Inc., Donald Zarda, a gay man, sued Defendant Altitude Express, alleging he was fired because of his sexual orientation.

The Second Circuit focused on the question of “[w]hether an employee’s sex is necessarily a motivating factor in discrimination based on sexual orientation. If it is, then sexual orientation discrimination is properly understood ‘a subset of actions taken on the basis of sex.” The Court ruled that an employer’s explanation that a male employee is fired because he is gay, and not because he is a man, is “slight of hand” and a “distraction.”

The Court discussed three points: (1) sexual orientation as a function of sex; (2) gender stereotyping violates Title VII; and (3) associational discrimination. First, the Court found that since sexual orientation is a function of sex, sexual discrimination is, therefore, a subset of sex discrimination. Second, “stereotypes about homosexuality are directly related to stereotypes about the proper roles of men and women.” Since sexual orientation discrimination is “rooted in stereotypes” it is, therefore, a “subset of sex discrimination” and an employer engages in unlawful sexual discrimination by taking an adverse employment action due to an employee’s failure to conform to gender norms. Third, if an employer discriminates because of sex it is usually because of opposition to romantic association between particular sexes.

The Second Circuit is the second federal circuit court to hold that Title VII protects against discrimination on the basis of sexual orientation, following the Seventh Circuit’s April 2017 decision in Hivley v. Ivy Tech Community College of Indiana. The EEOC has also amended the regulations governing Title VII to include sexual orientation.  In contrast, the Eleventh Circuit held in Evans v. Georgia Regional Hospital that Title VII does not afford such protection. It remains to be seen whether the conflicting rulings of the Circuit Courts and the EEOC will be resolved by the United States Supreme Court.

If you have any questions regarding Zarda, how it affects your current policies, or any other legal issue, please do not hesitate to contact us.

 

Categories: Case Alerts

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