Second Circuit Says Sexual Orientation Discrimination is Prohibited Under Title VII of the Federal Civil Rights Act
February 26, 2018 - Today, the full U.S. Court of Appeals for the Second Circuit determined that under Title VII of the federal Civil Rights Act, sexual orientation discrimination is discrimination "because of... sex." The ruling in Zarda v. Altitude Express reverses existing precedent in the Second Circuit barring lesbian and gay people from bringing employment discrimination claims under Title VII when they are targeted at work for their sexual orientation.
GLBTQ Legal Advocates & Defenders (GLAD) and the National Center for Lesbian Rights (NCLR), in partnership with WilmerHale, jointly filed an amicus brief supporting the late plaintiff, a New York man who brought a Title VII sex discrimination claim against his employer after he was fired for being gay. On the opposing side, U.S. Attorney General Jeff Sessions filed an amicus brief arguing that Title VII does not protect individuals from sexual orientation discrimination.
"Today's ruling from the Second Circuit, along with positive developments in other states and federal circuits, brings hope that existing civil rights laws can help to address the job discrimination plaguing so many LGBT people across the country," said Mary L. Bonauto, Civil Rights Project Director at GLAD. "The majority and concurring opinions powerfully demonstrate that discrimination 'because of sex' is at play in considering a person's sexual orientation. Taken together, this ruling is grounded in long standing case law about treating individuals differently from others because of sex, about sex stereotyping and about penalizing an individual's associations, as in cases about workers having relationships with persons of a different race. It is also attentive to changes Congress has made to Title VII over the years, partly in response to Court decisions that attempted to limit its reach."
"Today's ruling recognizes that sexual orientation discrimination always involves discrimination based on sex, and trying to draw an artificial line between the two leads to unfair and inconsistent treatment of workers' claims," said Shannon P. Minter, Legal Director at NCLR. "The federal courts are increasingly recognizing that LGBT workers are entitled to protection against discrimination under federal law. Congress should pass the Equality Act, which would make clear that these protections cover workers across the country."
Today's Second Circuit ruling follows a similar ruling last year in Hively v. Ivy Tech Community College from the Seventh Circuit Court of Appeals, as well the position held by the Equal Employment Opportunity Commission that lesbian, gay and bisexual workers are protected from sexual orientation discrimination under Title VII.
Employees in six states – Illinois, Indiana, Wisconsin, New York, Connecticut and Vermont, as well as the U.S. Virgin Islands – now have the assurance of clear federal protections against sexual orientation discrimination in the workplace. The U.S. Supreme Court should take the first opportunity available to it to act to make that understanding of Title VII uniform throughout the country.
Through strategic litigation, public policy advocacy, and education, GLBTQ Legal Advocates & Defenders works in New England and nationally to create a just society free of discrimination based on gender identity and expression, HIV status, and sexual orientation.
The National Center for Lesbian Rights is a national legal organization committed to advancing the human and civil rights of the lesbian, gay, bisexual, and transgender community through litigation, public policy advocacy, and public education. www.NCLRights.org