On February 26, 2018, the U.S. Court of Appeals for the Second Circuit ruled that federal law prohibits employment discrimination based on sexual orientation. Title VII of the Civil Rights Act of 1964 outlaws workplace discrimination because of “race, color, religion, sex, or national origin”. Unlike many state statutes, it does not specifically address sexual orientation discrimination.

In this ruling, the Second Circuit concludes that Title VII’s protection of “sex” encompasses sexual orientation. The decision establishes binding authority throughout New York, Connecticut, and Vermont.  The court overruled its earlier decisions where it held that Title VII did not prohibit sexual orientation discrimination.

What Is Sex?

In reaching its decision, the court assumed that “sex,” as used in Title VII, means “biologically male or female.”

The Second Circuit referenced its earlier stated, and often applied, position that “Title VII should be interpreted broadly to achieve equal employment opportunity”. It noted that Congress’ intent was to make sex irrelevant to employment decisions. And that the Supreme Court has found Title VII to apply not just to sex itself, but also to traits such as life expectancy and non-conformity with gender norms.

According to the court:

“Because one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex. Indeed sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted.”

In sum, the court wrote: “We now conclude that sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.”

Other Recent Court Decisions on Sexual Orientation Discrimination

For 50 years, the U.S. Equal Employment Opportunity Commission (EEOC) had not formally enforced Title VII’s reference to “sex” to include “sexual orientation.” During that time, most courts similarly read Title VII to not cover sexual orientation.

In 2015 the EEOC first ruled that “sexual orientation is inherently a ‘sex‐based consideration;’ accordingly an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” The Second Circuit is the third federal appeals court to consider the question since that EEOC ruling.

In March 2017, the U.S. Court of Appeals for the Eleventh Circuit declined to recognize sexual orientation claims under Title VII. The Eleventh Circuit covers Alabama, Florida, and Georgia.

Then, in April 2017, the U.S. Court of Appeals for the Seventh Circuit reversed its earlier position and found that “discrimination on the basis of sexual orientation is a form of sex discrimination”. The Seventh Circuit covers Illinois, Indiana, and Wisconsin.

Immediate Impact

For now, employers within Connecticut, New York, and Vermont must assume that Title VII prohibits them from discriminating based on sexual orientation. On a day-to-day basis, this should not be a significant development. State law in each of these states already prohibits sexual orientation discrimination in employment. However, the ruling opens up additional procedural options for employees claiming this form of discrimination. And additional remedies may be available to them under Title VII.

Will This Decision Stand?

Probably not.

Even the Executive Branch of the federal Government disagrees about the right outcome. The EEOC continued to support the plaintiff in this case. However, the Justice Department pressed the Second Circuit not to find Title VII to prohibit sexual orientation discrimination. Several other interested constituents submitted third-party briefs.

Notably, the Second Circuit’s decision was not unanimous. Eight judges issued written opinions. Three of the 13 judges dissented to at least some parts of the majority opinion.

As of now, it seems likely that the defendant employer will ask the U.S. Supreme Court to review the Second Circuit’s decision. With competing interpretations between the Circuit Courts, it would not be surprising for the Supreme Court to take this case of high public interest.

With an apparent 5-4 conservative majority, the Supreme Court may well take the historical approach of rejecting claims of sexual orientation discrimination under Title VII.

The Second Circuit’s full decision in Zarda v. Altitude Express, Inc., is available here.