Second Circuit Issues Landmark Decision that Title VII Prohibits Sexual Orientation Discrimination

Overruling its own precedent, the United States Court of Appeals for the Second Circuit became the second federal appeals court to hold that Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination on the basis of sexual orientation.

Zarda v. Altitude Express, Inc., decided on February 26, 2018, arose from the claims of a Long Island sky-diving instructor, Donald Zarda.  Zarda was fired after revealing to a female client, whose boyfriend then revealed to Zarda’s boss, that Zarda was gay.  Zarda alleged that his termination was discriminatory on the basis of his sexual orientation and sex in violation of Title VII, whereas the company attributed it to his behavior.  Title VII expressly prohibits workplace discrimination “because of . . . sex.”  The Second Circuit had previously declined to recognize that sexual orientation is inherently a sex-based consideration and, thus, it held that sexual orientation discrimination claims were not cognizable under Title VII.  Applying that precedent, the federal trial court dismissed Zarda’s case on summary judgment, concluding that Zarda had failed to show he had been discriminated against on the basis of his sex and declining to recognize sexual orientation discrimination as a cognizable claim under Title VII.  Zarda appealed, and the Second Circuit affirmed.  Thereafter, the Second Circuit granted rehearing en banc, which is a mechanism allowing judges to rehear a case upon a majority vote.  This is significant because en banc review rarely happens and is often saved for cases that present a “question of exceptional importance.”

Years after the Second Circuit originally ruled that sexual orientation is not covered by Title VII, the U.S. Equal Employment Opportunity Commission and the Seventh Circuit oppositely held that discrimination on the basis of sexual orientation is a form of sex discrimination barred by Title VII.  Emphasizing the evolving nature of Title VII, the Second Circuit in Zarda overruled its prior caselaw to hold that Title VII prohibits discrimination on the basis of sexual orientation as discrimination “because of . . . sex.”

In dispensing with its prior rulings, the Second Circuit reasoned that sexual orientation is defined by one’s sex in relation to the sex of those to whom he/she is attracted.  Discriminating against an employee because he/she is homosexual means discriminating against him/her because of a) his/her sex, and b) his/her sexual attraction to those of the same sex.  Thus, “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.”

The Second Circuit disagreed with the United States Justice Department, which argued in a friend-of-the court brief, that Title VII does not cover sexual orientation discrimination.

For now, the ruling that Title VII bars employers from discriminating based on sexual orientation applies to those in the Second Circuit, which includes New York, Connecticut, and Vermont.  However, this decision sharpens the divide among courts, setting the stage for a potential fight in the United States Supreme Court.  The Supreme Court could reverse the Second Circuit, or it could affirm, thereby extending Title VII’s prohibition on sexual orientation discrimination to the rest of the country.

For more information about the potential impacts of this Second Circuit ruling or what steps your company can take to effectively prevent and address complaints of sexual orientation discrimination, please contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group, at, or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at, or 973-533-0777.

Leave a Reply

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

Time limit is exhausted. Please reload CAPTCHA.