Why it matters

The U.S. Court of Appeals for the Second Circuit ruled that discrimination based on sexual orientation violates Title VII, making clear this issue splits the circuits and increasing the probability that the Supreme Court will ultimately have to resolve this issue.

Donald Zarda filed suit against Altitude Express Inc. alleging that he was fired after revealing his sexual orientation to a skydiving client. A district judge granted summary judgment to Zarda’s former employer on the ground that the statute does not prohibit discrimination on the basis of sexual orientation. A three-judge panel of the Second Circuit affirmed, but after an en banc rehearing, the court reversed. “We now hold that sexual orientation discrimination constitutes a form of discrimination ‘because of … sex,’ in violation of Title VII,” the majority wrote, reversing precedent in the circuit and reinstating the plaintiff’s claim. The Seventh Circuit has issued a similar decision, while the Eleventh Circuit has reached the opposite conclusion. With the split widening, the issue is likely headed to the Supreme Court.

Detailed discussion

Donald Zarda worked as a skydiving instructor for Altitude Express and regularly participated in tandem skydives, strapped hip-to-hip and shoulder-to-shoulder with clients. As a result of the physical proximity, Zarda sometimes told female clients about his sexual orientation (he was a gay man) to assuage any concern they might have about being strapped together.

In June 2010, he told a female client that he was gay “and had an ex-husband to prove it.” She later complained that Zarda inappropriately touched her and made a reference to being gay to excuse his behavior. Zarda was terminated and filed suit alleging sex stereotyping in violation of Title VII and sexual orientation discrimination in violation of New York law. Zarda passed away in 2014, and his estate continued to pursue the action.

The district court granted summary judgment in favor of Altitude Express on the plaintiff’s Title VII claim, ruling that a gender stereotyping claim could not be predicated on sexual orientation. At trial on his remaining claims, the jury found for the defendant. Zarda appealed.

A three-judge panel of the U.S. Court of Appeals for the Second Circuit affirmed summary judgment for the employer on Zarda’s Title VII claim, writing that it was bound by circuit precedent that could be overturned only by the court sitting en banc.

The en banc panel then ordered rehearing, revisited its precedent and reversed, reinstating Zarda’s claim.

Title VII sets forth a broad rule of workplace equality, the court emphasized, and the Supreme Court has recognized it applies to “not just ‘the principal evil[s] Congress was concerned with when it enacted’ the statute in 1964, but also ‘reasonably comparable evils’ that meet the statutory requirements.”

Sexual orientation discrimination is motivated, at least in part, by sex and therefore is a subset of sex discrimination, the majority wrote, because sex is necessarily a factor in sexual orientation.

“Because one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex,” the court said. “Indeed sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted. Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.”

Other types of claims initially believed to fall outside the scope of Title VII’s prohibition on sex discrimination—such as sexual harassment and hostile work environment—have been recognized as viable under the statute even though they were not plausible when it was enacted in 1964, the court noted. “[B]ecause Congress could not anticipate the full spectrum of employment discrimination that would be directed at the protected categories, it falls to courts to give effect to the broad language that Congress used,” the court said.

The Second Circuit’s conclusion was reinforced by the “comparative test,” in which the court considers whether the trait that is the basis for discrimination is a function of sex by asking whether an employee’s treatment would have been different “but for that person’s sex.”

“In the context of sexual orientation, a woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women,” the court explained. “We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.”

Viewing the relationship between sexual orientation and sex through the lens of gender stereotyping provided yet another basis for the court’s ruling, as sexual orientation discrimination is almost invariably rooted in stereotypes about men and women. Courts across the country have struggled with this issue, laboring to distinguish between gender stereotypes that support an inference of impermissible sex discrimination and those that are indicative of sexual orientation discrimination, the majority wrote.

“In the face of this pervasive confusion, we are persuaded that ‘the line between sex discrimination and sexual orientation discrimination is ‘difficult to draw’ because that line does not exist save as a lingering and faulty judicial construct,’” the court said. “We now conclude that sexual orientation discrimination is rooted in gender stereotypes and is thus a subset of sex discrimination.”

The court found additional support considering associational discrimination, which it said extends beyond race to all of Title VII’s protected classes, including sex, as well as the “sea change” in the constitutional framework governing same-sex marriage and the Equal Employment Opportunity Commission’s decision in Baldwin v. Foxx, recognizing that “sexual orientation is inherently a ‘sex-based consideration’; accordingly, an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.”

“Since 1964, the legal framework for evaluating Title VII claims has evolved substantially,” the majority wrote. “Title VII’s prohibition on sex discrimination applies to any practice in which sex is a motivating factor. … [S]exual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account. Sexual orientation discrimination is also based on assumptions or stereotypes about how members of a particular gender should be, including to whom they should be attracted. Finally, sexual orientation discrimination is associational discrimination because association between members of particular sexes discriminates against an employee on the basis of sex. Each of these three perspectives is sufficient to support this Court’s conclusion and together they amply demonstrate that sexual orientation discrimination is a form of sex discrimination.

“Although sexual orientation discrimination is ‘assuredly not the principal evil that Congress was concerned with when it enacted Title VII,’ ‘statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils.’ In the context of Title VII, the statutory prohibition extends to all discrimination ‘because of … sex’ and sexual orientation discrimination is an actionable subset of sex discrimination. We overturn our prior precedents to the contrary to the extent they conflict with this ruling.”

Vacating the district court’s judgment, the Second Circuit held that Zarda was entitled to bring a Title VII claim for discrimination based on sexual orientation.

To read the opinion in Zarda v. Altitude Express, Inc., click here.