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In a ground-breaking decision, the United States Court of Appeals for the Second Circuit reversed the decision of a trial court and held that sexual orientation discrimination constitutes a form of employment discrimination "because of . . . sex," in violation of Title VII of the Civil Rights Act of 1964. In so ruling, the Second Circuit overturned its prior decisions which held otherwise and joined the Seventh Circuit Court of Appeals in holding that discrimination based on sexual orientation violates Title VII.

In Zarda v. Altitude Express, Inc., the plaintiff, a skydiving instructor, brought a sex discrimination claim under Title VII alleging he was fired after telling a female client with whom he was preparing for a skydive that he was gay. The District Court dismissed Zarda's sexual orientation discrimination claims brought under Title VII, finding that this claim is not recognized by that law which prohibits sex discrimination.

The Court of Appeals noted that "sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination. Looking first to the text of Title VII, the most natural reading of the statute's prohibition on discrimination 'because of . . . sex' is that it extends to sexual orientation discrimination because sex is necessarily a factor in sexual orientation." The Court emphasized that "sexual orientation discrimination is predicated on assumptions about how persons of a certain sex can or should be, which is an impermissible basis for adverse employment actions."

The dissent argued, in part, that Title VII's prohibitions against "sex discrimination" were aimed at securing "the rights of women to equal protection in employment" and "had no intention of prohibiting sexual orientation discrimination." Rejecting this position, the full court for the Second Circuit held that "sexual orientation is a function of sex" and that "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."

Since there is now a split among the federal courts of appeals pertaining to the application of Title VII to sexual orientation discrimination claims, it is safe to assume that the U.S. Supreme Court will eventually examine this question.


Should you have any questions on this or other employment-related matters, please contact Mr. Kimler at 516.437.4385, x122, or akimler@vmmlegal.com.