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Second Circuit Rules Discrimination Based On Sexual Orientation Is Prohibited Under Title VII

February 27, 2018, on News & Results |

On Monday, the U.S. Court of Appeals for the Second Circuit in New York held that discrimination based on sexual orientation is prohibited under Title VII of the Civil Rights Act of 1964.[1] In its 10-3 decision, the court found in favor of plaintiff Donald Zarda,[2] a skydiver who was dismissed from his job as an instructor at Altitude Express after he made a comment to a student that he was gay. After the student complained to Altitude Express management about Zarda’s comment regarding his sexual orientation, Zarda was fired. Zarda then filed suit and claimed that he was illegally terminated due to his sexual orientation and that his firing constituted discrimination under Title VII.[3]

Title VII protects employees from termination based on “race, color, religion, sex, or national origin.”[4] The Equal Employment Opportunity Commission, which construes Title VII’s sex discrimination protections as extending to “gender identity and sexual orientation,”[5] supported Zarda in his claim against Altitude Express. Remarkably, the Justice Department, helmed by Trump-appointed U.S. Attorney General Jeff Sessions, inserted itself in Zarda’s case, but in opposition to the EEOC, which was still run by an Obama-era holdover at the time of hearing. The Justice Department argued that the Civil Rights Act does not protect employees from being fired because of their sexual orientation and contended “[e]mployers are permitted to consider employees' out-of-work sexual conduct.”[6]

Citing “evolving legal doctrine,” the Second Circuit concluded that “discrimination based on sexual orientation is a subset of sexual discrimination.”[7] The court expanded:

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. Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.

With this decision, the Second Circuit joins the Seventh Circuit in linking sexual orientation to sex-based discrimination under Title VII, while the Atlanta-based Eleventh Circuit reached the opposite conclusion.[8]  The U.S. Supreme Court, in late 2017, declined to hear an appeal stemming from the Eleventh Circuit’s decision[9]; however, the likelihood of a Supreme Court take on sexual orientation as a civil rights protection increases with a 2-1 split among the circuits. While residents and employees in Illinois, Indiana, Wisconsin, New York, Vermont, and Connecticut enjoy protection from discrimination based on sexual orientation, those in Alabama, Florida, and Georgia do not, while the rest of the country is yet to have a definitive court ruling on the topic.

With this in mind– and whether or not the Supreme Court agrees to hear a case on sexual orientation as a form of sex discrimination in the near future– protections for the LGBT community continue to grow in support. If you are the victim of discrimination based on your sexual orientation, contact the attorneys at Beatty Motil + Black for a free case evaluation and to learn your rights.



[2] In 2014, Zarda died in a base-jumping accident, and his Estate has continued the case on his behalf.