Title VII Protects Gay Employees, 2nd Circuit Rules
Author: David B. Weisenfeld, XpertHR Legal Editor
March 7, 2018
Gay workers won a major victory last week with the 2nd Circuit Court of Appeals ruling that Title VII of the Civil Rights Act bans discrimination on the basis of sexual orientation. In the 10-3 decision in Zarda v. Altitude Express, the full appellate court found that Title VII has "evolved substantially" and should be read to include sexual orientation discrimination as a subset of sex discrimination.
Writing for the 2nd Circuit, Chief Judge Robert Katzmann noted that the Supreme Court has held that Title VII prohibits discrimination based not just on sex itself but also on traits that are a function of sex, including non-conformity with gender norms.
The case involved a skydiving instructor, Donald Zarda, who told a female client with whom he was preparing for a tandem skydive that he was gay. The client told her boyfriend about the reference, who in turn told the instructor's boss. Altitude Express fired Zarda shortly thereafter, which he insisted was solely because of his sexual orientation.
The Trump administration filed a brief supporting the employer, arguing that even if discrimination based on sexual orientation reflects a sex stereotype it is not illegal because it treats women no worse than men.
But in rejecting this reasoning, the 2nd Circuit said the government had it backwards. For instance, Chief Judge Katzman noted that it would be no defense if an employer requires both women and men to refrain from same-sex attraction or relationships.
New York City employment attorney Jason Habinsky, of Haynes & Boone, says the ruling reiterates sexual orientation bias prohibitions already afforded by many states, cities and municipalities.
The Chicago-based 7th Circuit Court of Appeals reached a similar result with its 2017 Hively ruling that reinstated a case filed by a lesbian college professor who claimed her former employer rejected her for at least six full-time positions and did not renew her contract because of her sexual orientation.
But the Atlanta-based 11th Circuit reached the opposite conclusion in finding that Title VII does not ban sexual orientation discrimination in Evans v. Georgia Regional Hospital. The Supreme Court refused to hear an appeal in that case last fall, but the issue may eventually make its way back to the nation's highest court.
The Supreme Court had recognized the right of same-sex couples to marry in its landmark 2015 ruling in Obergefell v. Hodges. However, that ruling did not address employment protections.
Speaking of the 2nd Circuit's ruling, Habinsky calls it "an optimal opportunity for HR professionals to ensure that their employers' discrimination and harassment policies specifically identify sexual orientation, as well as gender identity."