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MCB Employment Update: Second Circuit Decides Sexual Orientation Is a Protected Category Under Title VII

March 1, 2018

 

The Second Circuit Court of Appeals held on Monday in Zarda v. Altitude Express that Title VII of the 1964 Civil Rights Act prohibits discrimination on the basis of sexual orientation. The Second Circuit’s decision parallels the Seventh Circuit but is contrary to the Eleventh Circuit.

 

“Sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account,” Judge Robert A. Katzmann wrote for the majority.

 

The plaintiff in this case sued his employer claiming that he was fired because of his sexual orientation. Consistent with its prior rulings, the Second Circuit initially held that the plaintiff had no claim under Title VII because sexual orientation was not a protected class. However, on an en banc review, the Second Circuit on Monday reversed and overruled prior case law, determining that sexual orientation should be treated as a subset of sex discrimination.

 

The Second Circuit’s recent decision is relevant for several reasons. First, federal law now prohibits discrimination on the basis of sexual orientation in New York, Connecticut, and Vermont, which are the states within the jurisdiction of the Second Circuit.

 

Second, while the New York State and New York City Human Rights laws had previously prohibited sexual orientation discrimination, federal law did not.

 

Third, the Zarda v. Altitude Express decision highlights a divide between two public agencies, the Equal Employment Opportunity Commission and the Department of Justice, as well as the split between Circuit Courts, which mirrors the nationwide difference in views regarding Title VII and its protection of employees based on sexual orientation. These differing viewpoints may be enough to prompt a Supreme Court review.

 

Until then, employers should review their policies to ensure that there are adequate protections in place for employees on the basis of sexual orientation.

 

 

Please contact Patrice Koeneke, Managing Partner, at patrice.koeneke@mcblaw.com if you have any questions or would like additional information.

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