Second Circuit Finds Title VII Prohibits Discrimination Based on Sexual Orientation

Executive Summary: Overruling prior circuit precedent, the full U.S. Court of Appeals for the Second Circuit held today that sexual orientation discrimination is a subset of sex discrimination under Title VII. In reaching this conclusion, the Second Circuit joins the Seventh Circuit, deepening a split among the federal appeals courts, as the majority of these courts have held that Title VII does not prohibit sexual orientation discrimination.

Full Second Circuit Holds That Sexual Orientation Discrimination Is A Subset of Sex Discrimination Under Title VII

Today the full U.S. Court of Appeals for the Second Circuit held in Zarda v. Altitude Express that Title VII of the Civil Rights Act of 1964 (Title VII) protects employees from sexual orientation discrimination. The court interpreted Title VII’s proscription of discrimination on the basis of “sex” to mean that sexual orientation discrimination is covered, finding that sexual orientation discrimination is “motivated, at least in part, by sex and is thus a subset of sex discrimination.”

The court so held by looking at the “most natural reading” of the prohibition on discrimination “because of sex,” because “sex is necessarily a factor in sexual orientation.” Given that one cannot define a person’s sexual orientation without identifying his or her sex, the court held that sexual orientation is a “function of sex.” The court held that its conclusion was reinforced by the Supreme Court’s “comparative test” for determining whether an employment practice is sex discrimination, quoting L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978), which asks whether an employee’s treatment would have been different “but for that person’s sex.” (emphasis added).

In concluding that sexual orientation discrimination is a subset of sex discrimination, the Second Circuit heavily relied on the Seventh Circuit’s recent opinion in Hively v. Ivy Tech Community College (7th Cir. 2017), which squarely held that “discrimination on the basis of sexual orientation is a form of sex discrimination.” Hively considered the sexual orientation question in the context of a female professor, who was attracted to other females, and was denied a promotion. The court considered a hypothetical scenario in which Hively was actually a male, attracted to women, who received a promotion. The Second Circuit found Hively’s reasoning persuasive, stating, “the Seventh Circuit concluded that, as alleged, Hively would not have been denied a promotion but for her sex, and therefore sexual orientation is a function of sex. From this conclusion, it follows that sexual orientation discrimination is a subset of sex discrimination.” For a more detailed discussion of the Hively decision, please see our prior Legal Alert.

Employers’ Bottom Line:

Until the Supreme Court decides this issue, resolving the split among the federal appeals courts, employers should treat sexual orientation as protected under Title VII. If you have any questions about this decision, please feel free to contact the authors of this post, David Kim, dkim@fordharrison.com, or Jeff Shooman, jshooman@fordharrison.com, attorneys in our Berkeley Heights, New Jersey office.

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