The landscape of sexual discrimination is expanding — the Second Circuit Court of Appeals has ruled sexual orientation discrimination constitutes sex discrimination in violation of Title VII. This creates a clear split among federal courts of appeal that may have to be resolved by the Supreme Court.

The Facts

In 2010, Daniel Zarda, a skydiving instructor for Altitude Express, regularly participated in tandem skydives with his clients. During those dives, Zarda and the client would be strapped together by the hips and shoulders. At times, Zarda would tell female clients of his sexual orientation to make them more comfortable with being strapped to him during the tandem dive. In June 2010, a client alleged that in addition to disclosing his sexual orientation, Zarda inappropriately touched her. Altitude terminated Zarda shortly thereafter.

Zarda sued Altitude alleging he was fired because of his sexual orientation. The District Court for the Eastern District of New York granted summary judgment to Altitude, holding that Zarda failed to show that he had been discriminated against “because of sex.” After the EEOC’s decision in Baldwin v. Foxx (in which the commission held that sex discrimination includes sexual orientation discrimination), Zarda petitioned the court to reinstate his claim. The district court denied the petition, citing the Second Circuit’s prior ruling in Simonton v. Runyon. Zarda appealed.

The Second Circuit’s Opinion

The full Second Circuit reversed, ruling that Title VII should be interpreted broadly to achieve equal employment opportunity. The court reasoned that if sexual orientation is a function of sex and sex is protected under Title VII, then sexual orientation must also enjoy that same protection because sex is necessarily a factor in sexual orientation. Sexual orientation discrimination, then, is derivative of societal expectations concerning how members of a given sex should or should not be. According to the court, as a practical matter, it is impossible to define someone’s sexual orientation without first identifying their sex.

The Second Circuit likened the addition of sexual orientation to the canon of sexual discrimination claims to the previous exclusions of sexual harassment and hostile work environment claims, which are now uniformly recognized. The court acknowledged that several logical routes could lead to their holding, namely that Zarda would have been treated differently “but for” his sex and/or that Altitude engaged in associational discrimination, whereby Zarda was subjected to adverse employment action because of his own sex in relation to the sex of those with whom he chose to interact with romantically.

What Does this Mean?

It depends on where you live as to what courts might rule on this issue. As of now, the most recent cases have resulted in the Eleventh Circuit failing to recognize a sexual orientation claim, while the Seventh Circuit has recognized this type of claim.

Under the Second and Seventh Circuit arguments, Title VII’s prohibition on sex discrimination applies to any action where sex is a motivating factor. Employers, then, must be hypervigilant in assuring that employment decisions don’t appear otherwise. The best practice is to establish, reiterate, and closely adhere to gender and sex-neutral policies. Further, if an employee is being terminated, make sure that there is a paper-trail documenting their performance deficiencies, remediation plans, and/or violations of clearly stated and employee-understood policies. At this juncture, double and triple checking your facts is perhaps the best practice to ensure that your company does not land on the wrong side of the “v” in a Supreme Court case on sex discrimination.