We previously told you about the ongoing debate centered around whether Title VII protects against discrimination based on sexual orientation (see our May and August newsletters). Late February, the Second Circuit Court of Appeals again ruled on the issue, departing from its prior position. Last year, a panel from the Second Circuit (meaning that the decision was rendered by only three judges) ruled that Title VII did not protect against sexual orientation discrimination. That decision was based, at least in part, on the conclusion that existing precedent can only be overturned by the entire Second Circuit or the Supreme Court. But the Court granted a rehearing en banc (meaning it would be decided by a full panel of thirteen judges) and oral argument was held last fall. Now, in Zarda v. Altitu de Express, Inc., the entire Second Circuit sitting en banc has decided that Title VII does protect against discrimination based on sexual orientation.

Donald Zarda was previously employed as a skydiving instructor. In 2010, a customer and her boyfriend purchased tandem skydives, in which an instructor is strapped to the back of a client. At some point during the jump, Zarda informed the female customer that he was gay—as he often did with female customers, to assuage any concerns or minimize any awkwardness since he was strapped tightly to them. When the female customer’s boyfriend found out after the sky dive, he complained to Altitude Express. Zarda was fired shortly thereafter. Zarda sued his former employer, alleging that he was fired from his job because he failed to conform to male sex stereotypes by referring to his sexual orientation.

Overturning prior precedent, the Second Circuit concluded that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.” In so doing, the Court recognized that Congress intended to make sex “irrelevant” to employment decisions and noted the Supreme Court has held that Title VII prohibits not just discrimination based on sex itself, but also discrimination based on traits that are a function of sex, such as life expectancy, and non-conformity with gender norms. Logically, Title VII’s prohibition on discrimination “because of…sex” extends to sexual orientation discrimination because sex is necessarily a factor in sexual orientation. One cannot fully define a person’s sexual orientation without identifying his or her sex; in fact, “sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted.” In the Second Circ uit’s view, sexual orientation is therefore a function of sex. 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.

According to the Court, this interpretation is “reinforced by considering the question from the perspective of sex stereotyping because sexual orientation discrimination is predicated on assumptions about how persons of a certain sex can or should be, which is an impermissible basis for adverse employment actions.” Sexual orientation discrimination is almost invariably rooted in stereotypes about men and women, which are impermissible bases for employment decisions. Referencing another recent appellate decision (discussed in our May newsletter), the Second Circuit noted that same-sex orientation “represents the ultimate case of failure to conform” to gender stereotypes (i.e., the belief that “real” men should date women, not other men). Regardless of whether negative views about same-sex attraction result from gender stereotypes or “moral beliefs about sexual, marital, and familial relationships” (as the defense argued) such beliefs necessarily take sex into consideration and are therefore predicated, to some degree, on sex. According to the Court, this inevitably brings them under the purview of Title VII’s prohibition against discrimination on the basis of sex.

With this ruling, the Second Circuit joins the Seventh Circuit in so holding. The Eleventh Circuit has already held that Title VII does not prohibit sexual orientation discrimination. To date, no other appellate courts (including the Tenth Circuit, in which Oklahoma lies) have decided the issue, and the Supreme Court has recently declined the opportunity to weigh in. This remains an ongoing debate, but one not likely to reach a consensus anytime soon. Stay tuned.

By Rebecca D. Bullard, rbullard@dsda.com