The Higher Ed Workplace Blog

Second Circuit Court Rules That Title VII Covers Sexual Orientation Claims

On February 26, the Second U.S. Circuit Court of Appeals, overruling its own precedent,  ruled that Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employers from discriminating against their employees based on sexual orientation, deepening a circuit court split on the issue which will eventually have to be decided by the Supreme Court.

While Title VII clearly prohibits workplace discrimination on the basis of “race, color, religion, sex or national origin,” and, since 1989, gender stereotyping, the law remains unclear and divided as to whether Title VII protections also apply to sexual orientation discrimination. In fact, until recently, legal doctrine has held the view that sexual orientation discrimination claims are not “cognizable” under Title VII.

However, legal doctrine can change, and in a July 2015 decision in the case Baldwin v. Foxx, the Equal Employment Opportunity Commission (EEOC) held, for the first time, that “sexual orientation is inherently a ‘sex‐based consideration;’ accordingly an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.”

Since the EEOC’s decision, three other circuits (not including this most recent Second Circuit ruling) had revisited the viability of sexual orientation discrimination claims under Title VII with mixed findings. In March 2017, the Eleventh Circuit held that Title VII does not extend to sexual orientation; but both the Seventh Circuit (April 2017) and the First Circuit (January 2018) recently ruled that Title VII does cover sexual orientation claims.

It was during this process of evolving precedent where the case Zarda v. Altitude Express played out in the Second Circuit. In 2010, the plaintiff filed suit against his former employer, skydiving company Altitude Express, claiming he had been fired because he was gay. The original suit, filed in New York federal court, alleged “sex stereotyping in violation of Title VII and sexual orientation discrimination in violation of New York law.”

The district court judge presiding over the matter ruled against Zarda due to the Second Circuit’s then-current precedent, stemming from cases in 2000 and 2005, which held that that “sexual orientation discrimination claims, including claims that being gay or lesbian constitutes nonconformity with a gender stereotype, are not cognizable under Title VII.”

Following the EEOC’s 2015 decision, Zarda asked the district court to reinstate his Title VII claim, but the court denied his motion, as the Second Circuit’s previous rulings still remained binding precedent. Zarda appealed and, in the face of the new decisions from the EEOC and Seventh Circuit, the Second Circuit “convened en banc” to reevaluate its previous positions on the issue. That reevaluation delivered the Second Circuit’s February 26 ruling that “Title VII prohibits discrimination on the basis of sexual orientation as discrimination “because of … sex” and deepened the current circuit court split on the issue.