En Banc Second Circuit Rules Sexual Orientation Discrimination Violates Title VII


As noted in our Supreme Court update this month, the U.S. Court of Appeals for the Second Circuit, sitting en banc, recently held that sexual orientation discrimination is covered by Title VII.

In Zarda v. Altitude Express, a federal district had found, based on Second Circuit precedent, that an employee’s Title VII claim could not proceed because his claim – that he was terminated based on his failure to conform to “straight male stereotypes” (i.e. his sexual orientation) – was not cognizable under Title VII (despite the EEOC’s contrary position).  Likewise, the panel of the Second Circuit that heard the appeal concluded that it, too, was bound by controlling Circuit precedent and upheld the district court’s decision.  A court of appeals, sitting en banc, may change Circuit precedent, and that is what the Second Circuit did in Zarda, ruling that discrimination based on sexual orientation is “because of sex” and therefore covered by Title VII.  The majority based its conclusion on three premises.

First, under a “comparative test” the court asks whether a man and a woman would be treated differently for the same behavior.  “In the context of sexual orientation, a woman who is subject to an adverse action because she is attracted to women would have been treated differently if she had been a man who was attracted to women. We therefore can conclude that sexual orientation is a function of sex and, by extension, sexual orientation is a subset of sex discrimination.”

Second, the majority found “gender stereotyping,” which is a recognized theory of sex discrimination (that men and women who do not adhere to traditional masculine and feminine behaviors may challenge their treatment under Title VII), applied equally to sexual orientation discrimination.  Said the majority, “an employer who discriminates against employees based on assumptions about the gender to which the employees can or should be attracted has engaged in sex-discrimination irrespective of whether the employer uses a double-edged sword that cuts both men and women.”

Third, the majority found the recognized theory of “associational discrimination” under Title VII also supported its conclusion that sexual orientation discrimination is covered by that law.  Just as courts have found it unlawful for employers to take adverse action against employees because they associate with individuals of another race, so too the majority found “if a male employee married to a man is terminated because his employer disapproves of same-sex marriage, the employee has suffered associational discrimination based on his own sex because ‘the fact that an employee is a man instead of a woman motivated the employer’s discrimination against him.’”

Three judges wrote separately to concur in the judgment, but not in all of the majority’s rationales. There also were three separate dissenting opinions.  The tenor of the dissents is encapsulated by the opening line of the opinion of Judge Lynch: “Speaking solely as a citizen, I would be delighted to awake one morning and learn that Congress just passed legislation adding sexual orientation to the list of grounds of employment discrimination prohibited by Title VII of the Civil Rights Act. . . .  [But] we all know that Congress did no such thing.”  Finding that Congress did not intend Title VII to cover sexual orientation discrimination when the law was enacted, the dissenting judges deemed themselves constrained to apply the law as passed.