Sexual Orientation Included as Civil Rights Protection

March 22, 2018

The Second Circuit Court of Appeals in New York has held that Title VII of the Civil Rights Act of 1964 protects sexual orientation, becoming only the second court to do so. The Seventh Circuit Court of Appeals has also delivered the same ruling.  The Second Circuit decision followed a hearing that determined that the estate of a gay man, who alleged he was fired as a result of a complaint about his sexual orientation, may revive its previously dismissed case against the deceased’s former employer. (Zarda v. Altitude Express, Inc., 883 F.3d 100 (2nd Cir. 2018).  The Second Circuit’s holding aligns with the Seventh Circuit while placing it at odds with the Eleventh Circuit.

The plaintiff in the initial case claimed that his employer, Altitude Express, fired him following a customer complaint about his sexual orientation.  Tragically, the plaintiff died in a BASE-jumping accident shortly after filing the lawsuit.  However, his estate took up the case and continued to prosecute it.  The Second Circuit dismissed the initial case and held the plaintiff had no claim under Title VII because sexual orientation was not a protected class.  The plaintiff then requested review and the Second Circuit granted the request.

Following the review, the Second Circuit held that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.”  The Second Circuit further stated that the language of Title VII includes sexual orientation discrimination “because sex is necessarily a factor in sexual orientation.”  Therefore, the Second Circuit held sexual orientation discrimination would be classified as sex discrimination under Title VII.  The decision overturned the Second Circuit’s prior precedent that held sexual orientation discrimination was not encompassed in sex discrimination.

While Zarda is important for its precedential value on an important contemporary issue, the case also exposed a public divide between two federal agencies.  The Equal Employment Opportunity Commission (“EEOC”), the agency in charge of enforcing Title VII, filed an amicus brief in the case. The EEOC argued that sexual orientation discrimination was within Title VII’s prohibition against sex discrimination, saying that any line drawn “between sexual orientation discrimination and discrimination based on sex stereotypes is unworkable and leads to absurd results.”

The Department of Justice (“DOJ”) then filed their own amicus brief in opposition to the EEOC.  The DOJ argued that the issue of sex discrimination in Title VII has been settled for decades and that Title VII does not prohibit sexual orientation discrimination.

While the Second Circuit’s decision obviously increases the number of jurisdictions in which federal law prohibits employers from firing employees for their sexual orientation, there are still a number of jurisdictions in which that protection does not exist.  This sets Zarda as a potential high profile case for review by the Supreme Court of the United States.

Most employers in the Second Circuit have already been treating sexual orientation as protected class because New York state statutes define sexual orientation as a protected class.  However, now is a good time to review policies and procedures to confirm that sexual orientation is listed as a protected class.  Also, employers should ensure that managers and human resources professionals are trained in how to properly enforce these policies and procedures.

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