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Second Circuit: Sexual Orientation Discrimination Is Covered Under Title VII

By: Stephanie Delatorre

On February 26, 2018, the U.S. Second Circuit Court of Appeals held that sexual orientation is covered by Title VII of the Civil Rights Act of 1964, aligning with a previous decision issued by the Seventh Circuit.  The Second Circuit’s decision further amplifies the existing Circuit split, as the Eleventh Circuit previously held that Title VII’s protections do not extend to sexual orientation. 

The plaintiff in the case presented was a skydiving instructor who claimed he was terminated after his employer learned of his sexual orientation from a customer.  The District Court dismissed Plaintiff’s Title VII claim on summary judgment, ruling in pertinent part that, as a matter of law, sexual orientation is not a characteristic protected by Title VII.  The plaintiff’s New York claim for sexual orientation discrimination went to trial, where the employer prevailed.  After final judgment was entered, the plaintiff appealed the dismissal of his Title VII sex discrimination claim to the Second Circuit.

On appeal, the Second Circuit vacated the district court’s decision and held that sexual orientation discrimination is a form of sex discrimination actionable under Title VII.  Judge Robert A Katzman, writing for the majority, explained:

“[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.” 

While the Second Circuit further noted that sexual orientation was not originally intended to be included under Title VII’s protections, it reached the ultimate conclusion that the reach of the law should be expanded to encompass sexual orientation as a “reasonably comparable evil.”

Employers should continue to monitor the law in each Circuit wherein it maintains operations and remain diligent in this evolving area of federal law given the current Circuit split on this issue.  Court watchers expect this issue to eventually be resolved by the U.S. Supreme Court.  Stay tuned to the blog, where we will continue to keep you updated regarding this and other major employment law issues. 

A link to the Second Circuit’s recent opinion can be found here: Zarda et al. v. Altitude Express, dba Skydive Long Island, et al., Case No. 15-3775 (2nd Cir. 2/26/18)