The debate over whether Title VII of the Civil Rights Act of 1964 protects against sexual orientation discrimination took another turn on February 26, 2018. The United States Court of Appeals for the Second Circuit ruled in Zarda v. Altitude Express, Inc., that sexual orientation is a protected class under Title VII. See Docket. No. 15-3775 (2d. Cir. Feb. 26, 2018) (en banc). In the process, the Second Circuit, sitting en banc, reversed its previous holdings in Simonton v. Runion (2000), which stated that sexual orientation was not specifically included in Title VII’s list of protected classes and therefore would not generally be actionable under Title VII.
In the original lawsuit, skydiving instructor Donald Zarda claimed that Long Island-based Altitude Express fired him because he revealed he was gay to a client. A U.S. District Court ruled in favor of the skydiving company because Zarda failed to prove he had been discriminated against because of his “sex.”
Zarda died in a 2014 accident, but his family pressed forward following Equal Employment Opportunity Commission’s (EEOC) 2015 ruling in Baldwin v. Foxx, which stated that sexual orientation was a protected class under Title VII. On April 18, 2017, a three (3) judge panel of the Second Circuit declined to reverse Simonton, noting that Simonton could only be overturned by the entire Second Circuit sitting en banc, and not by a three (3) judge panel. The Second Circuit subsequently agreed to hear the case en banc and a majority of the judges agreed that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.”
The impact of the Zarda decision will be significant for employees and employers within the Second Circuit. While sexual orientation discrimination was already illegal under the New York State Human Rights Law, the Zarda ruling will allow employees who have been discriminated against within the Second Circuit to bring sexual orientation claims in federal court, and also avail themselves of Title VII’s additional remedial provisions, such as the reimbursement of their legal fees and expenses for prevailing parties.
The Second Circuit now joins the Seventh Circuit (Illinois, Indiana and Wisconsin) in holding the sexual orientation discrimination is prohibited by Title VII. The Seventh Circuit issued its ruling in 2017 in the case of Hively v. Ivy Tech Cmty. Coll., 853 F.2d 339 (7th Cir. 2017). By contrast, the Eleventh Circuit recently held in Evans v. Georgia Regional Hosp., that sexual orientation is not a protected class under Title VII. Evans v. Georgia Regional Hosp., 850 F.3d 1248 (11th Cir. 2017), cert. denied, 138 S. Ct. 556 (2017). While the Supreme Court declined to review the Evans case, the Second Circuit’s ruling may prompt the Supreme Court to resolve the circuit split and provide some clarity and uniformity on this issue. Notably, the Second Circuit’s decision was not unanimous, with two (2) justices dissenting from the majority opinion. It is not clear at this time whether or not the Supreme Court will step into the fray and resolve the conflicting rulings on this issue. However, the Zarda decision increases the odds that this issue will be reviewed by the Supreme Court.
Employees who believe they have been discriminated against on the basis of their sexual orientation should consult with seasoned employment counsel for a thorough analysis of how this ruling impacts their rights. Employers should similarly consult with their legal counsel to review their policies and procedures and ensure they are appropriately managing their risk of liability.
David Fallon, Esq. is a Senior Associate at Tully Rinckey PLLC’s Albany office. He focuses his practice on federal and private sector employment litigation, and also represents businesses and individuals in a wide variety of matters in state and federal court litigation.