In a major decision last Monday, the full Second Circuit Court of Appeals became the second federal appellate circuit to conclude that Title VII’s prohibitions against sex discrimination also apply to discrimination and harassment claims based on sexual orientation. The Second Circuit joins the Seventh Circuit, which reached a similar decision last year.
In Zarda v. Altitude Express, Inc., the Second Circuit held 10-3 that Title VII includes sexual orientation based on three legal reasons: First, sex and sexual orientation cannot be meaningfully separated. Second, sexual orientation discrimination involves sex stereotyping, which is already prohibited under Title VII. Third, under the U.S. Supreme Court’s Loving decision, sexual orientation discrimination is a form of association discrimination based on the gender of the person to whom the employee is attracted.
This decision places the Second and Seventh Circuits in opposition to an Eleventh Circuit decision that excludes sexual orientation from the definition of sex under Title VII. To make things even more complicated, the EEOC sided with the successful plaintiffs in the Second Circuit case, while the U.S. Department of Justice filed a brief in favor of excluding sexual orientation from Title VII’s protections.
In many circumstances, this division would result in the U.S. Supreme Court agreeing to set a nationwide standard. However, the court declined to accept review of the earlier cases, and the defendants in Zarda have indicated that they do not intend to appeal the Second Circuit’s decision. If not, this would mean that federal protections against employment discrimination based on sexual orientation will depend for the foreseeable future on the state in which the employee works.