In a landmark decision, the Second Circuit (which covers New York, Connecticut, and Vermont), ruled that discrimination based on an employees’ sexual orientation is actionable under Title VII. The Second Circuit in Zarda v. Altitude Express, Inc. is only the second appellate court in the United States to expressly find that employers who discriminate on the basis of an employees’ sexual orientation violate federal law. The Second Circuit joins the Seventh Circuit, who reached a similar decision in Hively v. Ivy Tech Cmty. Coll. of Indiana. The decision in Zarda intensifies an existing circuit split bolstering the argument that the United States Supreme Court should rule on the issue.
On its face, Title VII prohibits discrimination “because of such individual’s race, color, religion, sex, or national origin.” Notably missing from the text of Title VII is discrimination based upon “sexual orientation.” The absence of sexual orientation within the text has resulted in extensive disputes on the issue, with the vast majority of courts determining that discrimination on this basis is not prohibited. The Second Circuit’s ruling, however, highlights a growing trend that sexual orientation is a subset of “sex” and should be a protected characteristic under federal law.
In Zarda, the plaintiff, an openly gay skydiving instructor, brought suit against his employer alleging he was terminated on the basis of his sexual orientation. In short, the plaintiff asserts that he was terminated after his employer discovered his sexual orientation and believed that such termination was based on his failure to adhere to the traditional “straight male macho stereotype.” The claim was originally dismissed under the guise that Title VII does not protect against discrimination based upon sexual orientation.
Relying heavily on the Seventh Circuit decision in Hively, which found that Indiana educator Kimberly Hively stated a claim for sexual orientation discrimination under Title VII, the Second Circuit in Zarda ruled that “[i]n the context of Title VII, the statutory prohibition extends to all discrimination ‘because of…sex’ and sexual orientation discrimination is an actionable subset of sex discrimination.” In coming to this conclusion, the Court noted that “[a]lthough sexual orientation is assuredly not the principal evil that Congress was concerned with when it enacted Title VII, statutory prohibitions often go beyond the principal evil to cover reasonable comparable evils.” Sexual orientation is one “comparable evil.”
To bolster its decision, the Zarda Court relied on three separate and distinct reasons for finding sexual orientation was protected, each of which the Court stated was enough on its own to bar this type of discrimination. First, the Court found that sexual orientation is an inherent function of sex. Put simply, the Court reasoned that “[b]ecause one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex….Logically, 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.” Therefore, the Court concluded sexual orientation is a subset of sex, making discrimination on this basis impermissible.
Next, the Court determined that discriminating on the basis of sexual orientation is a form of gender stereotyping, which is further prohibited under Title VII. In this regard, the Court explained that discrimination based on sexual orientation is “rooted” in gender stereotyping because it is based upon the idea that an individual is not conforming to the traditional forms of gender- i.e., men should be attracted to women, and women should be attracted to men. By discriminating for failing to conform to these stereotypes, the Second Circuit reasoned that the employer was engaging in a form of sex discrimination.
Finally, the Court strengthened its holding by finding that sexual orientation discrimination is also “associational discrimination.” Relying on the Supreme Court decision in Loving v. Virginia, which found a law prohibiting interracial marriage to be unconstitutional, the Second Circuit explained that an employee should be able to have romantic associations without fear of reprisal. By permitting an employer to discriminate on this basis, the Court reasoned that it was allowing decisions to be made solely on who the employee associated with. Such a determination would permit employers to impermissibly force the employee to conform to what the employer deemed appropriate within the employee’s personal life.
While it is too early to know whether the Supreme Court will take up the issue raised in Zarda and other cases, it is clear that the Zarda decision bolsters an employee’s argument that Title VII protects against sexual orientation discrimination. The Second Circuit’s well-structured three-reasoned approach attacked each argument raised by the employer, setting the framework for employees who wish to bring such claims going forward.
Employers with questions about the impact of the Second Circuit’s ruling should consult with counsel to ensure compliance with Title VII.