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The Split Deepens: 2nd Circuit Holds that Title VII Bans Sexual Orientation Discrimination

The U.S. Supreme Court now has a greater incentive to resolve the issue of whether Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of sexual orientation.

That motivation arrived on Monday, when the U.S. Court of Appeals for the Second Circuit handed down its 10-3 decision in Zarda v. Altitude Express, holding that "sex" discrimination includes sexual orientation because one cannot define a person's sexual orientation without identifying the person's gender. To emphasize this point, the court stated that sexual orientation discrimination is inevitably "motivated, at least in part, by sex and is thus a subset of sex discrimination."

In its Zarda decision, the Second Circuit has aligned itself with the U.S. Court of Appeals for the Seventh Circuit and the Equal Employment Opportunity Commission, both of which assert that Title VII bars workplace discrimination on the basis of sexual orientation. The Seventh Circuit’s April 2017 decision—in Hively v. Ivy Tech Community College— was hailed as a landmark victory for gay rights.

The Second and Seventh Circuits now agree that there is no difference between discrimination based on gender non-conformity—which the U.S. Supreme Court long ago held was actionable under Title VII—and sexual orientation. Being in a relationship with a member of the same sex, the courts found, is by definition failing to conform to the gender stereotype that women can only be in heterosexual relationships with men.

The two federal circuits are now at odds with the U.S. Court of Appeals for the Eleventh Circuit, which reached a different conclusion in March 2017 in Evans v. Georgia Regional Hospital. In that case, the Eleventh Circuit held that Title VII does not prohibit sexual orientation discrimination. Although recognizing that discrimination based on gender non-conformity is actionable, the Eleventh Circuit determined that there is no "binding precedent" by the U.S. Supreme Court that prohibits employers from discriminating against employees because of their sexual orientation.

Thus, under the Eleventh Circuit's holding, discrimination against a transgendered person because of gender non-conformity can constitute sex discrimination, but an individual’s gender non-conformity claim cannot be used to bootstrap a claim of discrimination "based on sexual orientation." Despite the initial circuit split, the U.S. Supreme Court denied certiorari in December 2017, declining to hear a case that could have resolved the issue. Now that the split has deepened, the Supreme Court may reconsider.

Although federal law is still in flux on this issue, employers should remember that many states and municipalities have amended their fair employment practices laws to expressly prohibit employment discrimination on the basis of sexual orientation and gender identity or expression.

Copyright © by Ballard Spahr LLP


About this Author

Louis Chodoff, Labor, Employment, Harassment, Discrimination, Ballard Spahr, Law FIrm

Louis L. Chodoff handles labor and employment law counseling and litigation associated with harassment, discrimination, wage and hour, whistleblower, wrongful discharge, and restrictive covenant disputes.

Mr. Chodoff litigates in state and federal courts as well as in various administrative agencies such as the New Jersey Department of Labor, New Jersey Division on Civil Rights, New Jersey Office of Administrative Law, Pennsylvania Human Relations Commission, and the Equal Employment Opportunity Commission. He counsels his clients on the employment and labor law implications of...

Kelley Kindig, Ballard Spahr Law Firm, Labor and Employment Litigation Attorney
Of Counsel

Kelly T. Kindig represents public and private employers in a broad range of employment litigation and counseling and labor matters. She helps clients develop employment policies relating to personnel and employment law issues and advises clients regarding compliance with various employment and labor laws, including Title VII, FMLA, FLSA, ADA, NLRA, and LMRA.

Ms. Kindig also counsels on hiring, firing, and disciplinary practices, as well as restrictive covenant matters. She is experienced with collective action litigation under the FLSA and ADEA and defends employers in employment litigation, including race, sex, and age discrimination, and sexual harassment lawsuits. Ms. Kindig represents employers in collective bargaining negotiations and labor arbitrations, as well as unfair labor practice charges and representation petitions filed with federal and state administrative agencies.

Noah Goodman, Ballard Spahr Law Firm, Philadelphia, Labor and Employment Attorney

Noah Goodman drafts federal court memoranda and position statements before administrative agencies. He also conducts research and advises employers on issues related to restrictive covenants, trade secrets, and unfair competition.

Prior to joining the firm, he oversaw a political campaign for a former Philadelphia City Councilman. Mr. Goodman also writes on collective bargaining issues in professional sports and was selected to present his law review comment, The Evolution and Decline of Free Agency in Major League Baseball, at the 28th...