In an en banc decision, the U.S. Court of Appeals for the Second Circuit decided on February 26 that Title VII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination on the basis of sexual orientation. Zarda v. Altitude Sys., Inc., No. 15-3775 (2d Cir. 2018). In doing so, the Second Circuit overruled its own precedents, including its decisions in Christiansen v. Omnicom Group, 852 F.3d 195 (2d Cir. 2017); Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005); and Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000). The Second Circuit joins the Seventh Circuit in ruling that sexual orientation is protected from discrimination, a position contrary to that taken by the Eleventh Circuit. See Hively v. Ivy Tech Cmty. Coll., 853 F.2d 339 (7th Cir. 2017); Evans v. Georgia Regional Hosp., 850 F.2d 1248 (11th Cir.), cert. denied, 138 S. Ct. 556 (2017). The Zarda case attracted 15 amicus briefs. Because sexual orientation is not listed as a protected class in Title VII, the Second Circuit examined whether sexual orientation discrimination is a type of sex discrimination.
The Second Circuit noted that the law had evolved since its earlier rulings, beginning with the EEOC’s administrative ruling in 2015 that an allegation of sexual orientation discrimination is necessarily an allegation of sex discrimination. Baldwin v. Foxx, EEOC Decision No. 0120133080 (July 15, 2015). Ever since, the EEOC has consistently taken the position that Title VII prohibits discrimination based on sexual orientation as a form of sex discrimination.
In Zarda, the Second Circuit characterized the issue before it as whether an employee’s sex is a motivating factor in discrimination based on sexual orientation, and answered that question in the affirmative. It explained that because sexual orientation discrimination is motivated at least in part by sex, it is a subset of sex discrimination. The court reasoned that, to identify someone’s sexual orientation, one needs to know the sex of the person and the sex of the individual to whom that person is attracted. “Because one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex. 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.” (p. 22) The court concluded that an employer that acts on the basis of a belief that men cannot be or must not be attracted to other men, but takes no action against women who are attracted to men, has acted based on gender.
The court explained further that “sexual orientation discrimination is almost invariably rooted in stereotypes about men and women,” (p. 38) and noted that discrimination based on sex stereotypes has long been recognized as a type of sex discrimination under Title VII. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
Finally, the court concluded that sexual orientation discrimination is a form of associational discrimination, a recognized form of discrimination, because it is motivated by an employer’s opposition to a romantic association between particular sexes. Past decisions in the Second Circuit and other courts had held that associational discrimination, such as discrimination against a white man because of his marriage to a black woman, violates Title VII. The Second Circuit held that the prohibition on associational discrimination applies to all of the classes protected by Title VII, including sex, and explained that associational discrimination exists if an employer terminates a male employee who is married to a man because the employer disapproves of same-sex marriage — the employer has discriminated against the employee based on the employee’s sex because the fact that the employee is a man instead of a woman motivated the employer’s discrimination against him.
The court concluded that the legal landscape for evaluating Title VII claims has evolved substantially since the passage of Title VII, and there is no justification in the statute for excluding sexual orientation discrimination claims from the reach of Title VII. Accordingly, the court vacated the district court’s judgment on Zarda’s Title VII claim and remanded the case for further proceedings.
Whether sexual orientation discrimination is prohibited by Title VII is still an open question in circuits other than the Second, Seventh and Eleventh, including the Third Circuit. It is unclear whether or when the Supreme Court will decide to take up the issue. The Court declined to accept an appeal filed in the Eleventh Circuit case, but it may agree to review another case now that two circuit courts have ruled that sexual orientation is protected by Title VII.
Although sexual orientation discrimination is prohibited by the laws of many states, it is not prohibited in Pennsylvania (except for employers in a Pennsylvania municipality that prohibits sexual orientation discrimination, such as Philadelphia). Nevertheless, the EEOC will accept and pursue charges of sexual orientation discrimination. Consequently, prudent Pennsylvania employers should draft their anti-discrimination and anti-harassment policies to include sexual orientation as a protected characteristic and should refrain from making decisions based on an employee’s sexual orientation.