News & Resources


Mar 08, 2018
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Last week, the United States Court of Appeals for the Second Circuit ruled that Title VII of the Civil Rights Act of 1964 (“Title VII”) protects employees from discrimination on the basis of sexual orientation. The Second Circuit has now aligned itself with the Seventh Circuit, which just last year became the first federal court of appeals to hold that sexual orientation is a protected classification under Title VII.

The case, Melissa Zarda, et al. v. Altitude Express, dba Skydive Long Island, et al., involved a skydiving instructor who would occasionally disclose the fact that he was gay to female clients in an effort to help them feel more at ease with being strapped hip-to-hip and shoulder-to-shoulder with him. The instructor was terminated after the boyfriend of a client complained that the instructor touched his girlfriend inappropriately and disclosed his sexual orientation to excuse his behavior. The instructor sued his former employer under Title VII, which prohibits workplace discrimination “because of sex.” The trial court dismissed the claim, finding that “sexual orientation” was not a protected class under the employment discrimination protections of Title VII.

On appeal, the Second Circuit reversed its own precedent, concluding that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.” The Court stated that “sexual orientation discrimination is predicated on assumptions of how persons of a certain sex can or should be, which is an impermissible basis for adverse employment actions.” The Court further held that such discrimination is also a form of associational discrimination in that it “is motivated by an employer’s opposition to romantic association between particular sexes.”

The Court acknowledged that discrimination based on sexual orientation was almost certainly not contemplated when Title VII was passed, but stated that “legal doctrine evolves” and “because Congress could not anticipate the full spectrum of employment discrimination that would be directed at the protected categories, it falls to courts to give effect to the broad language that Congress used.” In a lengthy dissenting opinion, however, Judge Gerard E. Lynch stated that he “would be delighted to awake one morning and learn that Congress had just passed legislation adding sexual orientation to the list of grounds of employment discrimination prohibited under Title VII” or “that Congress had secretly passed such legislation more than a half century ago” but “we all know that Congress did no such thing.”

In the wake of the decisions of the Second and Seventh Circuits, employment discrimination on the basis of sexual orientation is now expressly prohibited in Connecticut, Illinois, Indiana, New York, Vermont and Wisconsin. Additionally, the federal Equal Employment Opportunity Commission (EEOC) has been interpreting and enforcing Title VII in this manner on a nationwide basis for several years.

This area of the law has continued its rapid evolution. In fact, nationwide, scores of states and municipalities have passed laws that offer employment protections to members of the LGBTQ community. Employers should therefore consult with counsel to review their policies and practices regarding discrimination (and harassment, which is a form of discrimination) to ensure that they are in compliance with all federal, state and local laws. Please feel free to contact Amanda Smith, Katie Basch or the K|W|W attorney you usually work with should you have any questions or if you would like assistance in this rapidly changing area.