Second Circuit Holds Title VII Prohibits Sexual Orientation Discrimination

On March 1, 2018, the United States Court of Appeals for the Second Circuit held in Zarda v. Altitude Express, Inc. that sexual orientation discrimination violates Title VII of the Civil Rights Act of 1964. This is the second such decision in the last year, with the Seventh Circuit reaching the same conclusion in 2017. The two decisions holding that sexual orientation discrimination is indeed discrimination based on sex are in conflict with an Eleventh Circuit decision reaching the opposite conclusion, and make clear that this issue is ripe for review by the United States Supreme Court.

Although a near-majority of states outlaw sexual orientation discrimination via their state fair-employment laws, under the federal law there is no clear consensus. In recent years there has been a growing trend to bring sex-related issues within the purview of Title VII’s prohibition on discrimination based on sex, and the Equal Employment Opportunity Commission has prosecuted cases wherein plaintiffs were victims of discrimination based on their sexual orientation. That said, last week’s decision is a landmark for proponents of equality, and should have far-reaching implications in the coming months.

Clarity on the Issue

The Supreme Court declined to review this issue for the current term when there were just two circuits split in authority, but now that more Court of Appeals decisions are coming down there is a clear need for clarity on the issue. Although the Supreme Court is extremely unpredictable in its decision making, there has been a clear trend toward including sexual orientation within the protection afforded by Title VII in the district courts (as well as the aforementioned state laws).

If you are an employer who has yet to institute a policy prohibiting discrimination and harassment on the basis of sexual orientation, now would be a good time to do so, regardless of your jurisdiction’s current position on the issue. In addition to the legality of the issue, it is simply good practice to be more inclusive than the law on issues of discrimination and harassment. For that reason, now may be a good time to train your employees on issues of sex-based discrimination that they may not traditionally associate with their view of “sex discrimination” and what exactly that term means.

Syntrio is a leader in the human resources and employment law fields (as well as ethics and compliance), and is prepared to help your company implement a compliance program aimed at reducing the potential impact of harassment, discrimination and other employment law issues your organization may face. Syntrio takes an innovative philosophy towards employment law training program design and strives to engineer engaging, entertaining, and thought-provoking content.


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Written by, Jon Gonzalez, Esq., Chief Counsel for Syntrio


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