Second Circuit Holds That Civil Rights Act Of 1964 Bars Discrimination Based On Sexual Orientation

Earlier today, the Second Circuit Court of Appeals held that workplace discrimination on the basis of sexual orientation violates Title VII of the Civil Rights Act of 1964 (“Title VII”). The plaintiff, skydiving instructor Donald Zarda (“Zarda”), alleged that he was fired because he was gay in violation of Title VII, which bars workplace discrimination on the basis of sex, race, color, national origin and religion.  The Eastern District of New York granted summary judgment to the Defendants.  Plaintiff then moved to reinstate the claim, based on the subsequent Equal Employment Opportunity Commission (“EEOC”) ruling that sex discrimination includes sexual orientation discrimination.  The Eastern District declined to do so, and Plaintiff appealed.  A three-judge panel of the Second Circuit Court of Appeals affirmed the denial, and the full Second Circuit agreed to a rare en banc rehearing.

After rehearing the case, the full Second Circuit reversed the lower court and three judge panel.  In an extensive, 163-page opinion, the Court ruled that "sexual orientation discrimination -- which is motivated by an employer’s opposition to romantic association between particular sexes -- is discrimination based on the employee’s own sex."  Accordingly, the Court held that it was impossible to discriminate on the basis of sexual orientation and without considering the employee’s sex.

One of the most fascinating facets of this case was the dueling positions of the United States government.  On one side, the EEOC argued on behalf of the Plaintiff, noting that the EEOC itself had recently ruled that sexual orientation discrimination was a subset of sex discrimination.  Conversely, the Justice Department argued for the employer, going so far as to claim that the EEOC was “not speaking for the United States.”

Looking ahead, the Second Circuits decision in Zarda puts it in conflict with the 11th Circuit Court of Appeals, which ruled in March 2017 that Title VII did not extend to sexual orientation.  Though the U.S. Supreme Court declined to hear the appeal in that case, the subsequent circuit split makes it increasingly that the Supreme Court will grant certiorari on the issue in the near future. 

The case was Zarda v. Altitude Express, Inc., Index No. 15-3775.  The full opinion can be found here.

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