Second Circuit Declares Sexual Orientation Discrimination is Sex Discrimination under Title VII

Acknowledging the “changing legal landscape” surrounding Title VII protections against discrimination, the Second Circuit overturned prior precedent and held sexual orientation is discrimination because of sex. The Second Circuit, sitting en banc in Zarda v. Altitude Express, Inc., examined the issue “from the perspective of sex stereotyping,” and unequivocally concluded that “sexual orientation discrimination is predicated on assumptions about how persons of a certain sex can or should be,” which is “an impermissible basis for adverse employment actions.” In Zarda, a deceased skydiving instructor was allegedly fired for disclosing his sexual orientation to a client and not conforming to the “straight male macho stereotype.”

Adopting the protections embraced by the Equal Employment Opportunity Commission (EEOC), the Second Circuit joins the Seventh Circuit in expanding the protections of Title VII to LGBTQ employees. The Eleventh Circuit has held the opposite conclusion. Given the circuit split, legal experts predict that the issue is now moving closer towards the United States Supreme Court.

While Title VII protects against employment discrimination on the basis of an individual’s race, color, religion, sex or national origin, the language of the statute does not include protection on the basis of sexual orientation. The Second Circuit declared that it does. Mindful of the limits of judicial power, the dissent cautioned against extending protections that are within the purview of Congress and not the courts.

For employers who already have protections in place for their LGBTQ employees, the threat of a federal claim based on sexual orientation discrimination should not be severe. For others, it would be worthwhile to reexamine and revamp employee manuals, handbooks, and policies to ensure compliance and minimize risks by specifically addressing the prevention of sexual stereotyping and sexual orientation discrimination. The bottom line is simple: protection for all employees is good for the workplace and is good for business.