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Second Circuit Rules on Sexual Orientation Discrimination

Explicitly overruling prior cases on this issue, the Second Circuit Court of Appeals has unequivocally held that sexual orientation discrimination is prohibited sex discrimination under Title VII. With the entire panel of its judges weighing in, the Second court has joined the Seventh Circuit in reaching this conclusion. The 11th Circuit had previously decided not to overrule its precedent absent a contrary U.S. Supreme Court decision directly on the issue.

In Zarda v. Altitude Express, Donald Zarda was a sky-diving instructor for Altitude Express. He disclosed to one of the company's female clients that he was gay and had the "ex-husband to prove it." This disclosure made its way to the owners, and Mr. Zarda was fired shortly thereafter. He claimed that his sexual orientation was the basis for his dismissal.

Over the opinion’s 69 pages, the court methodically analyzed the issue through three central legal perspectives and responded in thorough detail to the arguments made by the opposition. The opposition was led by the Justice Department. The court began with the statutory language of Title VII.

"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.'"

Title VII has been held to include a prohibition on traits that are a function of sex, such as non-conformity with gender norms.

Is an employee's sex necessarily a motivating factor in sexual orientation discrimination? For the Second Circuit, the answer was a resounding "yes."

First, the court examined the question from the perspective of sexual orientation as a subset of sex discrimination. Firing a man because he is attracted to other men necessarily is a decision based on sex, per the court's reasoning. While Congress may not have considered sexual orientation discrimination at the time of Title VII's enactment, sexual orientation discrimination may still be prohibited. Sexual harassment and hostile work environment claims were also not initially thought to be prohibited. Per the circuit court, the language of Title VII reflects a legislative intent to define discrimination in the broadest terms and recognition that "constant change is the order of our day and that the seemingly reasonable practices of the present can easily become the injustices of the morrow." (Citing language from a Fifth Circuit case on a hostile work environment claim.) The circuit court also utilized language from a Supreme Court decision on gender-stereotyping stating that: "[S]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils," and that courts should be governed "by the provisions of our laws.” In examining whether an employer was using a trait as a proxy for sex, the standard was whether the employee would have been treated differently “but for” his or her sex. Thus, if the plaintiff had been a heterosexual individual and the outcome of the adverse employment action would be different that is sex discrimination, according to the circuit court.

Using a gender stereotyping analysis led the court to the same conclusion. An employer that takes adverse action against a male employee attracted to men on the belief that it is wrong, while accepting that a female employee is attracted to men, has discriminated based on gender.

Finally, the court reviewed the issue through the lens of associational discrimination. Employees should not be discriminated against because of their association with individuals of their same gender. In reaching this conclusion, the Second Circuit relied on race-based associational discrimination precedent that often-protected white employees subject to discrimination based on their relationship with African-American partners.

At the district court level, the court had determined Mr. Zarda did have a claim for sexual orientation discrimination and thus, Mr. Zarda will now be entitled to pursue his claim.