October 21, 2019

October 21, 2019

Subscribe to Latest Legal News and Analysis

October 18, 2019

Subscribe to Latest Legal News and Analysis

Second Circuit Rules Sexual Orientation Is Protected under Title VII

This week, the Second Circuit overruled its prior circuit precedent and held Title VII prohibits discrimination in employment on the basis of sexual orientation.  In reaching its conclusion, the Second Circuit aligned itself with the Seventh Circuit and the Equal Employment Opportunity Commission and affirmed the growing consensus in the judiciary that sexual orientation discrimination constitutes discrimination “because of sex.”  This interpretation was previously rejected by the Eleventh Circuit, and with the Second Circuit’s ruling, there now exists a greater federal court of appeals circuit split on the issue

The plaintiff in this case – Donald Zarda – worked as a skydiving instructor at Altitude Express and would sometimes inform his female clients that he was gay to mitigate any concern they might have about being strapped to a man for a tandem skydive.  The boyfriend of one of Zarda’s female clients complained to Zarda’s boss that Zarda had inappropriately touched her and informed the client he was gay to excuse his behavior. Altitude Express then fired Zarda.  Zarda asserted he acted appropriately at all times and he was fired solely because he informed his client about his sexuality.  Although Zarda later died in a skydiving accident before the case went to trial, his estate continued the case, arguing that Zarda’s termination constituted discrimination under Title VII. In its ruling, the Second Circuit emphasized: “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.”

This decision is important for three reasons

As we discussed in our 2017 March Client Alert, the Second Circuit previously held that employees, regardless of sexual orientation, can sue under Title VII to seek relief for harassment, discrimination and retaliation, but only if the discrimination is related to alleged gender nonconformity.  Therefore, to survive dismissal, LGBTQ employees previously have been constrained to characterize sexual orientation discrimination claims as legally valid gender non-conforming claims under Title VII.  Reversing its prior ruling, the Second Circuit in Zarda essentially held that such a back door pleading is no longer necessary.

Practically, if an employee lives in New York, Connecticut, Vermont, Indiana, Illinois or Wisconsin (states within the Second and Seventh Circuits), then federal law protects the employee from being fired based on sexual orientation.  There is no such protection for employees working in Georgia, Alabama and Florida (states within the Eleventh Circuit).

Because the Second Circuit’s ruling broadens the circuit split on the issue of Title VII protection based on sexual orientation, the Supreme Court will have to eventually resolve the scope of Title VII protections, although not for the foreseeable future as the defendants in Zarda have indicated they will not appeal the ruling. 

Employer Tip

The Zarda decision establishes that discrimination based on sexual orientation may be deemed a violation of Title VII in the Second Circuit.  In New York and New Jersey, discrimination on the basis of sexual orientation is already prohibited on the state and city level, so the Second Circuit decision is only relevant to federal claims in the Second Circuit, not claims under state/city law in our area.  However, employers should still analyze their current policies and practices and ensure that they protect against discrimination and harassment based on sexual orientation.  Employers should also be diligent in training their managers to avoid subjective employment decisions on the basis of sexual orientation.

© Copyright 2019 Sills Cummis & Gross P.C.


About this Author

David I. Rosen, Sills Cummis Gross, Wrongful Dismissal Lawyer, Labor Arbitration Attorney

David I. Rosen has practiced labor and employment law on behalf of management clients since 1977. He handles employment litigation in the federal and state courts, before administrative agencies and through arbitration and mediation, and has broad experience with wrongful dismissal and employment discrimination claims, having successfully defended employers following jury and bench trials. His litigation experience extends to the enforcement and defense of restrictive covenants, NLRB unfair labor practice trials and appellate advocacy. Mr. Rosen also represents employers in labor...

(973) 643-5558
Galit Kierkut, Employment Litigation Attorney, Sills Cummis Gross, Social Media Matters Lawyer

Galit Kierkut concentrates her practice on employment litigation and counseling. She conducts human resources audits, performs management and employee training in all areas, including sexual harassment, social media and electronic communications use, and counsels clients regarding compliance with state and federal employment laws, including discrimination laws, the Fair Labor Standards Act (FLSA), family and medical leave, and the Worker Adjustment and Retraining Notification (WARN) Act. She also reviews and drafts employee handbooks, social media policies and employment contracts, including restrictive covenants and severance agreements. Her employment litigation practice is primarily focused on resolving claims in the areas of discrimination, sexual harassment, restrictive covenants, whistleblowing and employment contract disputes in state and federal courts and before the Department of Labor and the Equal Employment Opportunity Commission (EEOC).

Charles Kaplan, Sills Cummis Gross, Labor Employment Attorney, Affirmative Action Matters Lawyer

Charles H. Kaplan is a Member of the Sills Cummis & Gross Employment and Labor Practice Group and is resident in the Firm’s New York Office.  Mr. Kaplan represents employers in federal and state trial and appellate courts, as well as before enforcement agencies, including the U.S. Equal Employment Opportunity Commission, the National Labor Relations Board, the Office of Federal Contract Compliance Programs of the U.S. Department of Labor, the New York State Division of Human Rights, the New York State Department of Labor and the New York City Commission on Human Rights.