This week, in a case called Zarda v. Altitude Express, the Second Circuit held 10-3 that discrimination on the basis of sexual orientation is prohibited under Title VII.
In this case, the plaintiff, a gay man who worked as a sky driving instructor at Altitude Express, was fired by his employer after he told a female client about his sexual orientation. He, like other sky diving instructors, often performed tandem sky dive jumps, which involved being strapped hip‐to‐hip and/or shoulder‐to‐shoulder with clients. During the incident that formed the basis for his termination, Zarda said that the he disclosed his sexual orientation to a female client to dissuade any discomfort the woman might have about having to be strapped to him during the tandem jump. The client, on the other hand, alleged that Zarda inappropriately touched her and disclosed his sexual orientation to excuse his behavior. When her boyfriend complained to Altitude Express about Zarda’s alleged behavior and his reference to his sexual orientation, Zarda’s boss fired him. Notably, there was evidence that Zarda’s co‐ workers routinely referenced sexual orientation or made sexual jokes around clients.
Zarda filed suit against Altitude Express, under New York state law and Title VII. Zarda lost his state claim at trial. The lower court dismissed the sexual orientation claim at summary judgment, reasoning that a sexual orientation claim was not “legally invalid” under Title VII. On appeal, the Second Circuit reversed.
According to the Second Circuit Zarda’s sexual orientation claim is valid under Title VII for three critical reasons:
1. It is covered by the Title VII’s statutory language prohibiting discrimination “because of sex.” The Court stated:
Because one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex. Indeed sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted. Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.
2. Title VII’s prohibition against sex discrimination bars employers from taking adverse action against employers who fail to conform to gender stereotypes, which discrimination on the basis of which sexual orientation is the “ultimate case”; and
3. Title VII prohibits “associational discrimination.” An employer commits race discrimination in violation of Title VII if it takes adverse action against an employee in an interracial marriage. Similarly, “[i]f a male employee married to a man is terminated because his employer disapproves of same-sex marriage…the employee has suffered associational discrimination based on his own sex.”
This decision makes the Second Circuit among the several federal courts, along with the Equal Employment Opportunity Commission, who have opined that sexual orientation is prohibited by Title VII notwithstanding that the statute does not specifically include sexual orientation among the list of protected classes. But this position is not unanimous. The Eleventh Circuit, for example, ruled just last year that sexual orientation discrimination is not prohibited by Title VII.
The Take Away
Importantly, the Zarda case underscores that employers should seriously consider taking steps to avoid discriminating against a person based on any personal characteristic, including sexual orientation or even gender identity, if it wishes to avoid liability.
First, while discrimination on the basis of sexual orientation might not be protected by federal law in an employer’s protected jurisdiction, it might nonetheless be prohibited by state law. Several states, including Massachusetts and New Hampshire, have laws expressly prohibiting discrimination on the basis of sexual orientation. Massachusetts state law also prohibits discrimination on the basis of gender identity.
Second, employment discrimination in the context of sexual identity issues is an evolving area of the law. As mentioned above, there is disagreement within the Federal Government whether homosexual and/or transgender individuals are protected against employment discrimination under existing federal statutes. This lack of certainty could well lead to liability if an employer relies on one particular legal decision in this changing area of the law.
Third, the Zarda case makes clear that it is the Federal Courts and not the Department of Justice, who will be the final arbiter of the meaning of federal law, including Title VII. In reaching its decision, the Second Circuit rejected the view of Trump administration, whose DOJ filed an unsolicited amicus brief arguing that homosexuals are not protected against employment discrimination under federal law. In this same way, a federal court may well reject the DOJ’s earlier opinion letter that Title VII does not prohibit transgender discrimination, and an employer who relied on the DOJ’s view therefore may not be protected from liability if it gets sued under Title VII on such basis.