Second Circuit Rules that sexual orientation discrimination is illegal under Federal Law

As we previewed in our earlier post LGBTQ Rights and the Workplace, the Second Circuit Court of Appeals in New York has released its decision in Zarda v. Altitude Express, holding that sexual orientation discrimination is considered sex discrimination under Title VII of the Civil Rights Act of 1964. Sex discrimination is one of the types of discrimination historically barred under Title VII. After a 10-3 vote, Chief Judge Robert Katzmann authored the majority opinion, which gives three separate legal grounds for their holding.

First, the majority found that sexual orientation discrimination is sex discrimination because a person’s sexual orientation is a “function of sex.” In other words, you cannot determine a person’s sexual orientation without first knowing their own sex. Because sexual orientation is linked to sex in this way, any discrimination due to a person’s sexual orientation is also discrimination based on that person’s sex, which historically has been a violation of Title VII.

Second, Chief Judge Katzmann wrote that sexual orientation discrimination is sex discrimination under Title VII on a “gender stereotyping” theory. Previously, in Price Waterhouse v. Hopkins, the Supreme Court held that “adverse employment actions taken based on the belief that a female accountant should walk, talk, and dress femininely constituted impermissible sex discrimination.” Chief Judge Katzmann goes on further to state that the gender stereotype at work here is that men should only date women and not men. Therefore, any discrimination based on this gender stereotype is sex discrimination as contemplated by prior Title VII jurisprudence.

As a third legal ground, the majority held that sexual orientation discrimination is sex discrimination based on “associational discrimination.” The Supreme Court recognized associational discrimination in the famous case of Loving v. Virginia, which held laws banning interracial marriage to be unconstitutional. The Second Circuit had previously recognized associational discrimination in Holcomb v. Iona College, in which a white basketball coach alleged he was fired because he was married to a black woman. The Court held that, under Title VII, the coach was discriminated against because of his association with someone of a different race. Similarly, Chief Judge Katzmann wrote that Mr. Zarda has been discriminated against because of his association with a partner of the same sex.

With this opinion, the Second Circuit is now in agreement with the Seventh Circuit, which recently ruled similarly in Hively v. Ivy Tech Community College, and the Equal Employment Opportunity Commission, which recognized sexual orientation discrimination under Title VII in 2015 for the first time. However, the Eleventh Circuit and the Department of Justice both hold the position that sexual orientation discrimination does not fall under the Title VII prohibition against sex discrimination.

The Supreme Court will eventually have to decide the issue since there is a split between the Circuits. Defendants in this case have indicated that they will not appeal, so that decision will not be anytime soon. Thus, for now, the Second Circuit – – comprised of New York, Vermont, and Connecticut – – will recognize sexual orientation discrimination as sex discrimination that is a violation of Title VII of the Civil Rights Act.