Zarda Ruling Sets Stage for Legal Battle Over Employment Discrimination

Analysis & Commentary


Yesterday, the United States Court of Appeals for the Second Circuit in New York ruled that Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of (among other things) “sex”, protects gay, lesbian and bisexual employees from discrimination based on their sexual orientation.

The case, Zarda v. Altitude Express, arose when Don Zarda, a skydiving instructor for skydiving company Latitude Express, Inc., was fired after he disclosed to a female client in 2010 that he was gay. Zarda sued Altitude Express in federal district court in New York, alleging that his termination on the basis of his sexual orientation violated his Title VII rights because the decision to terminate him was based on his sex.

The district court dismissed Zarda’s claim, bound by a 2000 Second Circuit decision reflecting the law at time, which held that sexual orientation could not form the basis of a “sex” discrimination claim under Title VII. When Zarda appealed to the Second Circuit, a three-judge panel assigned to hear the appeal followed suit, relying on the same precedent. However, during the pendency of his appeal, the Equal Employment Opportunity Commission, acting under President Obama, reversed its interpretation of Title VII and ruled that because sexual orientation discrimination is based on gender stereotypes, it is discrimination based on sex under Title VII. In light of this and other legal developments, the Second Circuit took the very unusual step of granting Zarda a second appeal, this time referring the matter to all13 judges on the Court of Appeals, so that the entire Court could re-examine its precedent in light of the changing legal landscape.

On Monday, the Court sided decisively with Zarda. In a 10-3 decision, the Court reversed its previous ruling and decided that sexual orientation discrimination is, as a matter of law, discrimination “because of sex” under Title VII. In reaching this decision, the Court cited three main developments. First, the Court noted that it is impossible to determine a person’s sexual orientation without considering his or her sex- the very nature of homosexuality is, of course, attraction to the same sex. Therefore, Court reasoned, any decision which takes into account a person’s sexual orientation is a decision based, at least in part, on the person’s sex. Second, the Court reasoned that where adverse action is taken against an employee because of his or her sexual orientation, it is by definition action that would not be taken “but for” that person’s sex. An employer who fires a man solely because he was attracted to a man is essentially admitting that it would not have fired the man if he had been a woman attracted to the same man. In other words, “but for the fact that he was a man” he would still have his job.

Finally, the Court examined a line of cases that have by now established that discrimination based on male or female sexual stereotypes is illegal under title VII. Applying those cases to this one, the Court stated that same-sex attraction is “the ultimate failure to conform” to stereotypical gender norms. Therefore, discrimination on the basis of sexual orientation is entirely rooted in stereotypes and therefore illegal. All of these considerations led the court to rule that for purposes of Title VII, sexual orientation is a subset of sex-based discrimination prohibited by Title VII.     

While the case is a resounding victory for the LGBT community, allow me to share some legal insights that will hopefully keep us vigilant while we celebrate. First, this decision does not change the law in most of the country. The Second Circuit is only one of two federal appeals court to hold this way, following the Seventh Circuit. The Eleventh Circuit has ruled that Title VII makes no reference to sexual orientation and therefore provides no protection for LGB employees. So, if one lives in New York, Connecticut, Vermont, Illinois, Indiana or Wisconsin, he or she has Title VII protection. But if one lives in Florida, Georgia or Alabama, he or she most certainly do not. Everywhere else, it’s up in the air. It will be up to the U. S. Supreme Court to resolve the issue absent a change in the law. Second, this decision is based on a statute, not the Constitution, meaning that Congress can overrule it by simply amending Title VII.

If we are to keep this momentum going, we need to keep the midterm elections in the forefront of our minds. There is a strong likelihood that the president will get another appointment to the Supreme Court before this case reaches the Court. If history is any indication, he will not seek to seat a judge that supports this interpretation. Fortunately, it only takes a bare majority in the Senate to block the appointment of a bad judge, and a favorable majority is within reach in 2018. Additionally, there is no doubt that this decision will infuriate the conservative Republican base, which in turn will push the republicans in Congress to overturn the decision. I have seen this happen, having worked on a case that went to the Supreme Court, only to have Congress step in and change the law before the case could be heard and decided by the Court. Only our votes can guarantee that will not happen. 

The entire ruling, along with concurrences and the three dissents, can be found HERE.