Sexual Orientation Protected Under Title VII

On February 26, 2018, the Second Circuit Court of Appeals held in the case of Zarda v. Altitude Express, Inc. that discrimination on the basis of sexual orientation is a violation of Title VII of the Civil Rights Act of 1964.  The decision overturned prior Second Circuit precedent from 2005 holding that sexual orientation claims are not actionable under Title VII.  This makes the Second Circuit the second federal appellate court to rule this way, joining the Seventh Circuit.

In its ruling, the Second Circuit found that sexual orientation discrimination is a form of discrimination “because of” sex, reasoning that:

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.

The case involved the plaintiff Zarda, who was fired in 2010 from a skydiving job in Central Islip, New York, which required him to strap himself tightly to clients so they could jump in tandem from an airplane.  When jumping with a female passenger, Zarda attempted to put her at ease about the physical contact by telling her not to worry because he was gay.  After the jump, the school fired Zarda when the woman’s boyfriend called to complain about his behavior.

This ruling now places the Second Circuit in line with the position of the United States Equal Employment Opportunity Commission, which found that coverage of a sexual orientation claim “is the same as any other Title VII case involving allegations of sex discrimination – whether the [employer] has ‘relied on sex-based considerations’ or ‘take[n] gender into account’ when taking the challenged employment action.’

Notably, New York State has held that sexual orientation is a protected class since 2002 when the State Human Rights Law was amended to include it as a specific class. In New York State, sexual orientation discrimination has been unlawful since 2002. At that time, the New York State Legislature amended the New York State Human Rights Law to prohibit discrimination based on sexual orientation commensurate with the protections applied to all other protected classes under the law, such as race, color and sex.  The  protections are also offered under the New York City Human Rights Law.

The case is likely to be appealed to the United States Supreme Court.