Second Circuit Holds That Sexual Orientation Claims are Permissible Under the Civil Rights Act

March 1, 2018 | By Dove A.E. Burns, Ivo J. Becica

While the lesbian, gay, bisexual and transgender community has made a number of important legal advancements over the last decade, it still amazes many people to learn that, under federal law, an employee can be fired because they are gay.  Politicians, advocacy groups and courtroom litigants have worked for decades to change that.  And while explicit legislative pronouncements have not come, some courts are nonetheless instituting protections.

Title VII of the Civil Rights Act of 1964 prevents employers from discriminating against employees based on various protected categories, including on the basis of sex.  However, sexual orientation is notably absent from the list of protected categories.  In 1974, Representatives Bella Abzug and Ed Koch introduced the Equality Act, the first bill that would have added sexual orientation to Title VII.  Then, in 1994, the Employment Non-Discrimination Act (ENDA) was first introduced, with 137 cosponsors.  This legislation, while not directly amending Title VII, would have explicitly prohibited discrimination in employment on the basis of sexual orientation.  ENDA has been introduced, but failed, in nearly every Congress since 1994 (including a version introduced in the House in 2015).

This legal fight has been going on almost as long as the gay rights movement itself.  Starting in the 1970s, employees and their counsel began arguing that that discrimination on the basis of sexual orientation should be covered by the existing prohibition on discrimination on the basis of sex.  These initial attempts were unsuccessful.  However, over the years, various district courts began accepting these arguments and allowing sexual orientation claims to proceed under Title VII.  However, until recently, every federal circuit court of appeal to decide this issue held that claims of discrimination on the basis of sexual orientation were not cognizable under Title VII.  Then, in 2015, the Equal Employment Opportunity Commission (“EEOC”) issued its first decision holding that such claims could be brought under Title VII.  Faced with that significant policy change, the circuits have begun reexamining their prior holdings.  In 2017, two federal circuits tackled this question with different results.  In March, a three-judge panel of the Eleventh Circuit stuck with longstanding precedent, and in April, the full Seventh Circuit adopted the EEOC’s position.  The plaintiff in the Eleventh Circuit case filed a petition asking the Supreme Court of the United States to reverse the decision, but the Supreme Court declined to hear the case.  Thus, for the time being, the circuits are left to decide for themselves.  This past week, it was the Second Circuit’s opportunity to weigh in.

In Zarda v. Altitude Express, the plaintiff, a skydiving instructor, was fired after he disclosed his sexual orientation to a client.  The employer moved for summary judgment on the ground that the plaintiff failed to state a claim for discrimination on the basis of sex.  The Eastern District of New York agreed and entered judgment for the employer on that claim.  After the EEOC’s 2015 decision, Zarda asked the court to reinstate his Title VII claim.  When the court refused, Zarda appealed; thus, forcing the Second Circuit to decide this issue.

The EEOC filed an amicus brief reiterating its prior position.  Then, following President Trump’s inauguration, the Department of Justice (“DOJ”) filed a brief taking the contrary position; thus pitting two federal agencies against each other.  At the oral argument before 13-member panel of the Second Circuit this fall, the EEOC and the DOJ both appeared and maintained their contradictory positions.

On February 26, 2018, the Second Circuit issued its 10-3 decision holding that sexual orientation claims are permissible under Title VII.  The court held, “To determine whether a trait operates as a proxy for sex, we ask whether the employee would have been treated differently ‘but for’ his or her sex.  In the context of sexual orientation, a woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women.  We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.”

Here are some important takeaways from this decision:

  • Currently, 33 states prohibit discrimination in employment on the basis of sexual orientation (although some of these laws apply only to public employment). Thus, in most states, the issue of whether or not such discrimination is also prohibited by federal law might not change the outcome of cases.  However, in Zarda, the Title VII claim was reignited after the plaintiff lost his state law claim because he was subject to a higher burden of proof under state law.
  • If you operate a business in the Second Circuit (New York, Connecticut and Vermont), discrimination on the basis of sexual orientation is now a violation of federal law—regardless of what state law says.
  • Now that three circuits have reviewed their prior rulings on this topic, and two of them have reversed course, expect most other circuits to also reexamine their prior decisions.
  • Now that one circuit has decided one way and two have decided the other way, it is much more likely that the Supreme Court will agree to take up this issue at some point in the future. However, that will have to wait for another case, as counsel for Altitude Express has stated that the company does not intend to appeal the decision.

Employers with questions about this developing area of the law, and its potential impact on their personnel policies and practices, should contact an attorney with experience in this area of the law.  The attorneys of Obermayer Rebmann Maxwell & Hippel LLP frequently advise clients regarding discrimination-related issues.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.

About the Authors

Dove Burns

Dove A.E. Burns


Dove focuses her practice on employment law and professional liability. She has experience defending corporate clients and executives, professional service providers, multibillion-dollar international restaurant chains, hospitals, municipalities, housing authorities, nonprofits, and boards...

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Ivo Becica

Ivo J. Becica


Ivo is a partner in Obermayer’s Labor Relations & Employment Law Department. He focuses his practice on representing employers, including advising companies on how to handle employee issues, and defending employee claims...

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