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Second Circuit Decides Title VII Prohibits Sexual Orientation Discrimination - Is a Supreme Court Showdown Next?

On February 26, 2018, the U.S. Court of Appeals for the Second Circuit in New York issued its en banc decision in Zarda v. Altitude Express, 883 F.3d 100 (2nd Cir. 2018), holding that Title VII of the federal Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of sexual orientation. Altitude Express terminated Donald Zarda, a Long Island sky-diving instructor, in 2010. As Mr. Zarda prepared for a tandem sky-dive with a female student, he told her that he was "100 percent gay," and the student's boyfriend later complained to Altitude Express, which then terminated Mr. Zarda's employment. Mr. Zarda commenced a lawsuit in the federal U.S. District Court for the Eastern District of New York, asserting that his firing violated Title VII.

The Zarda court concluded that "sex" discrimination includes sexual orientation because a person's sexual orientation cannot be defined without identifying that person's gender, and remarked that sexual orientation discrimination is "motivated, at least in part, by sex and is thus a subset of sex discrimination." In addition, the Zarda court held that sexual orientation was also a protected category by "viewing this issue through the lens of associational discrimination," because, since the court had accepted the premise of associational discrimination, "it makes little sense to carve out same-sex romantic relationships as an association to which these protections do not apply."

The Zarda court follows an April, 2017 decision by the U.S. Court of Appeals for the Seventh Circuit in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017), and an earlier decision by the U.S. Equal Employment Opportunity Commission ("EEOC") in Baldwin v. Foxx, No. 01220133080 (July 15, 2015), that Title VII prohibits workplace discrimination on the basis of sexual orientation. The Zarda, Hively and Baldwin decisions, however, are at odds with the U.S. Court of Appeals for the Eleventh Circuit, which held in March, 2017 in Evans v. Georgia Reg'l Hosp., 850 F.3d 1248, 1255-57 (11th Cir. 2017), that Title VII does not prohibit sexual orientation discrimination. Based upon this circuit split, observers predict that the U.S. Supreme Court will strongly consider taking up the issue if presented with it.

A number of state laws, including the Minnesota Human Rights Act ("MHRA"), forbid discrimination based on sexual orientation. The MHRA specifically defines "sexual orientation" as "having or being perceived as having an emotional, physical, or sexual attachment to another person without regard to the sex of that person or having or being perceived as having an orientation for such attachment, or having or being perceived as having a self-image or identity not traditionally associated with one's biological maleness or femaleness."

Employees who feel that they have been discriminated against due to their sexual orientation and employers that have compliance questions regarding these developments should contact E&U to speak with one of our legal professionals.

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