In what may turn out to be the start of a significant shift among federal appellate courts, the Second Circuit Court of Appeals recently held that discrimination on the basis of sexual orientation is prohibited under Title VII of the Civil Rights Act.
In Zarda v. Altitude Express, Inc., the Second Circuit reconsidered its own previous ruling that Title VII does not cover sexual orientation discrimination claims. Zarda was a homosexual skydiving instructor who brought a sex discrimination claim under Title VII alleging he was terminated because he did not conform to male gender stereotypes as a result of his sexual orientation.
The Second Circuit initially (and begrudgingly) followed their own precedent and held that Title VII did not cover such claims. Upon reconsideration by the full court, the court overruled its own precedent and held that Title VII does recognize sexual orientation within the framework of sex discrimination claims. Specifically, the court found that discrimination based on an individual’s sexual orientation is discrimination “because of sex” as prohibited by Title VII.
Significance of this Case
While Zarda is not the first time an appellate court has found sexual orientation protected under Title VII (the Eleventh Circuit previously found such protections in Hively v. Ivy Tech Community College of Indiana), it does show a significant trend among federal appellate courts in recognizing a more expansive interpretation of the protections under Title VII. Numerous federal district courts have also recognized such protections, as has the Equal Employment Opportunity Commission (EEOC), which issued guidance in 2015 officially recognizing sexual orientation as a protected class under Title VII.
Employers should ensure their antiharassment and discrimination policies reflect the protections afforded under federal and state law, including protections against discrimination and harassment based on an individual’s sexual orientation. Additionally, directors, officers, managers, and employees should be provided with antiharassment and discrimination training that includes discrimination or harassment on the basis of an individual’s sexual orientation and gender identity.
The sea change in the interpretation and enforcement of Title VII is coming. Now is the time to prepare.