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Appeals Court Rules Sexual Orientation Discrimination Prohibited By Title VII

On February 26, 2018, the United States Court of Appeals for the Second Circuit held that sexual orientation discrimination constitutes a form of discrimination “because of . . . sex” in violation of Title VII.    Zarda v. Altitude Express, Inc., 2d Cir., No. 15-03775 (2/26/18).  The court overturned prior decisions holding otherwise, saying that “legal doctrine evolves.”  This is the second appeals court to depart from precedent and find that employment discrimination based on sexual orientation is illegal under federal law.  Last year the U.S. Court of Appeals for the Seventh Circuit ruled that anti-gay discrimination is discrimination “because of sex.”  Hively v. Ivy Tech Cmty. College of Ind., 853 F.3d 339 (7th. Cir. 2017).  However, in March 2017 the U.S Court of Appeals for the Eleventh Circuit held that sexual orientation discrimination is not actionable under Title VII.  Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017).  This sets up a split among circuits, which the Supreme Court may eventually resolve.

Donald Zarda was a skydiving instructor who claimed he was fired from his job at Altitude Express, Inc. because he was gay.  Zarda died in a base-jumping accident in 2014, but the executors of his estate were substituted as plaintiffs.  As part of Zarda’s job, he regularly participated in tandem skydives, strapped hip-to-hip and shoulder-to-shoulder with clients.

According to Zarda, other employees frequently referenced the close quarters with clients and made sexual jokes.  Zarda sometimes told female clients about his sexual orientation to alleviate any concern they may have about being strapped to a man for a tandem skydive.

Zarda told one female client that he was gay “and had an ex-husband to prove it.”  Zarda said he was trying to preempt any apprehension the client had about being strapped to the body of an unfamiliar man.  But the female client alleged that Zarda inappropriately touched her and then disclosed his sexual orientation to excuse his behavior.  The client’s boyfriend complained to Zarda’s boss, and Zarda was fired.

Zarda denied any inappropriate touching occurred and claimed that he was fired because of his sexual orientation.  In his EEOC charge, Zarda alleged that he was discriminated against because of his sexual orientation and because of his gender, because he did not conform to the straight male macho stereotype.  While Zarda proceeded to trial and lost his claim under New York law, his Title VII claim was dismissed.

A three-judge panel affirmed the dismissal of the Title VII claim, but the appeals court decided to rehear the case en banc.

The full court concluded that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.”  The court reasoned, “the most natural reading of {Title VII’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 court wrote this interpretation was reinforced by the legal prohibition on sex stereotyping, which involves making assumptions about how persons of a certain sex should or should not be.  The court also addressed the question from the perspective of associational discrimination, finding that “sexual orientation discrimination – which is motivated by an employer’s opposition to romantic association between particular sexes – is discrimination based on the employee’s own sex . . ..”


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