Sexual orientation discrimination is covered by the ban on sex discrimination in the Civil Rights Act according to a recent finding of one of the US appeal courts. This conclusion deepens a split among federal appeal courts, the majority of which have held that sexual orientation discrimination is not covered.

By: David S. Kim, Jeffrey A. Shooman

Firm: FordHarrison

On 26 February 2018, the US Court of Appeals for the Second Circuit held that Title VII of the Civil Rights Act of 1964 (‘Title VII’) protects employees from sexual orientation discrimination (Zarda v. Altitude Express). The court interpreted Title VII’s ban on discrimination on the basis of ‘sex’ to cover sexual orientation discrimination, finding that sexual orientation discrimination is ‘motivated, at least in part, by sex and is thus a subset of sex discrimination.’

The court reached this conclusion by looking at the ‘most natural reading’ of the prohibition on discrimination ‘because of sex’, because ‘sex is necessarily a factor in sexual orientation.’ Given that one cannot define a person’s sexual orientation without identifying his or her sex, the court held that sexual orientation is a ‘function of sex.’ The court held that its conclusion was reinforced by the Supreme Court’s ‘comparative test’ for determining whether an employment practice is sex discrimination quoting L.A. Dep’t of Water & Power v. Manhart (435 U.S. 702, 711 (1978)), which asks whether an employee would have been treated differently ‘but for that person’s sex.’

In concluding that sexual orientation discrimination is prohibited under Title VII, the Second Circuit heavily relied on the Seventh Circuit’s recent opinion in Hively v. Ivy Tech Community College (7th Cir. 2017), which held that ‘discrimination on the basis of sexual orientation is a form of sex discrimination.’ Hively considered the sexual orientation question in the context of a female professor, who was attracted to other females, and was denied a promotion. The court considered a hypothetical scenario in which Hively was actually a man, attracted to women, who received a promotion. The Second Circuit found Hively’s reasoning persuasive, stating:

‘the Seventh Circuit concluded that, as alleged, Hively would not have been denied a promotion but for her sex, and therefore sexual orientation is a function of sex. From this conclusion, it follows that sexual orientation discrimination is a subset of sex discrimination.’

Employers’ Bottom Line

Until the Supreme Court decides this issue, resolving the split among the federal appeals courts, employers should treat sexual orientation as protected under Title VII.