The U.S. Court of Appeals for the Second Circuit recently held that Title VII prohibits discrimination on the basis of sexual orientation in Zarda v. Altitude Express, No. 15-3775 (2d Cir. 2018).  With this decision, the Second Circuit joins the Seventh Circuit as the second court to recognize sexual orientation as a protected class under federal law.

Donald Zarda was a skydiving instructor who claimed that he was terminated from his position after he told a client that he was gay.  He sued his former employer and its owner, alleging that Title VII and New York law prohibit discrimination based on sexual orientation.  The lower court granted partial summary judgment in favor of the employer on the ground that Title VII does not protect gay and lesbian employees.  Zarda died in a skydiving accident prior to trial, so his estate filed an appeal with the Second Circuit.  A three-judge panel determined that it lacked the authority to address whether Title VII encompasses discrimination based on sexual orientation, but the court ordered a rehearing en banc.

Overturning years of precedent, the Second Circuit held that it “now conclude[s] that sexual orientation is motivated, at least in part, by sex and is thus a subset of sex discrimination” under Title VII.  In support of its holding, the Court explained that “[b]ecause one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex.”  Therefore, it reasoned that “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.”

The Court also rejected the “semantic sleight of hand” argument that sexual orientation discrimination is not based on an employee’s sex if an employer fires a man because he is gay without referencing his gender as a male.  Instead, the Court explained that “[f]or purposes of Title VII, firing a man because he is attracted to men is a decision motivated, at least in part, by sex.”

Currently, the Sixth Circuit (the court with appellate jurisdiction over the district courts in Kentucky, Michigan, Ohio and Tennessee) has yet to rule that Title VII prohibits sexual orientation discrimination.  However, the issue is likely headed to the U.S. Supreme Court based on the deepening circuit split between the Second and Seventh Circuits, which recognize sexual orientation as a subset of sex discrimination, and a three-judge panel of the Eleventh Circuit, which does not.