Sexual Orientation Discrimination is a Form of Sex Discrimination

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On February 26, 2018, the U.S. Court of Appeals for the Second Circuit in a 10-3 decision concluded that the prohibition against sex discrimination established in Title VII of the Civil Rights Act, includes sexual orientation.  The case, Zarda v. Altitude Express, Inc., No. 15-3775, concerns a skydive instructor who alleged he was terminated after revealing his sexual orientation to a client who then reported it to his employer.  Chief Judge Robert Katzmann, writing for the majority, reached the conclusion that Title VII protects against sexual orientation discrimination in part because “sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted,” thus necessarily encompassing sex as a factor.

In coming to this decision and overruling its own precedent, the Second Circuit joins the Seventh Circuit in breaking from other appeals courts that have ruled on the issue.   The Zarda case is also unique in that it resulted in a difference of legal opinion between the Equal Employment Opportunity Commission, which filed an amicus brief supporting Zarda’s appeal, and the US Department of Justice, which supported the employer, Altitude Express.

As of this writing, Altitude Express had not indicated whether it intends to appeal to the U.S. Supreme Court.  We will continue to monitor this case and provide updates, if any.


About the Authors

Onik'a Gilliam

Ms. Gilliam’s practice focuses primarily on defending private and public entities, including school districts, in a wide range of civil litigation matters pending in state and federal courts and before administrative agencies, with an emphasis on employment-based and negligence claims.

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