The Tides Are Turning: Second and Seventh Circuits Rule Discrimination Based on Sexual Orientation i

Does Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of sexual orientation? Yes, it does! On February 26, 2018, in a truly historic en banc decision, the United States Court of Appeals for the Second Circuit held that sexual orientation discrimination constitutes a form of discrimination in violation of the “because of . . . sex” provision of Title VII. This long-awaited decision was fueled by “the changing legal landscape” over the last two decades.

Prior to the Zarda v. Altitude Express decision, twelve out of thirteen circuit courts held that Title VII did not prohibit discrimination on the basis of sexual orientation. In April 2017, in the landmark case Hively v. Ivy Tech, the Seventh Circuit became the first federal court to hold that Title VII protects individuals from discrimination on the basis of their sexual orientation. The Seventh Circuit determined that Title VII prohibits discrimination based on sexual orientation because of “the common sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.”

Mirroring the Seventh Circuit’s decision in Hively, the Second Circuit became the second to hold that sexual orientation discrimination, which is “comparable to sexual harassment, gender stereotyping, and other evils long recognized as violating Title VII,” violates Title VII.

The Zarda decision offers a multitude of explanations as to why sexual orientation discrimination is prohibited by Title VII. For example, the Second Circuit brilliantly expanded the definition of “discrimination based on sex” to include “discrimination based on traits that are a function of sex, such as . . . non-conformity with gender norms.” The Court reasoned that “sexual orientation is a function of sex” and “one cannot fully define a person’s sexual orientation without identifying his or her sex” and “the sex of those to whom he or she is attracted.” Additionally, “because Congress could not have anticipated the full spectrum of employment discrimination[,]” the Second Circuit concluded that the “statutory reading” of Title VII includes sexual orientation discrimination because such discrimination is grounded in “assumptions about how persons of a certain sex can or should be” which is based on sex because it “is motivated by an . . . opposition to romantic association between particular sexes.”

Judge Jacobs concurred with the Zarda majority opinion by establishing a connection between associational discrimination based on race and associational discrimination based on sex. In Holcomb v. Iona Coll., “a person of one race was discriminated against on the basis of race because he consorted with a person of a different race” and “Zarda . . . allege[s] discrimination based on his relationship with a person of the same sex.” Therefore, because it could be shown in both cases that “the basis for discrimination is disapproval and prejudice as to who is permitted to consort with whom,” the concurring opinion found that discrimination against Zarda is “cognizable under Title VII.”

While the dissenting opinion in Zarda interprets the question of “because of sex” discrimination as “whether one sex is systematically disadvantaged in a particular workplace[,]” the majority contends that “Title VII does not ask whether a particular sex is discriminated against; it asks whether a particular ‘individual’ is discriminated against ‘because of such individual’s . . . sex.’” Further, in stark opposition to the majority, the dissenting opinion states “[a] refusal to hire gay people cannot serve as a covert means of limiting employment opportunities for men or for women . . . and discriminating against them discriminates against them, as gay people, and does not differentially disadvantage employees or applicants of either sex.” The position of the dissenting opinion is clear – discrimination against gay or lesbian individuals is not discrimination against a “protected group” under Title VII.

GELC celebrates the Zarda and Hively decisions for what they mean for the LGBTQ community and for our clients facing discrimination on the basis of their sexual orientation. As our society continues to charge, we hope to see more decisions like this one. All individuals need protection from discrimination, especially in the workplace.