On February 26, 2018, the United States Second Circuit Court of Appeals held that Title VII of the Civil Rights Act prohibits discrimination on the basis of an employee’s sexual orientation. Zarda v. Altitude Express, 2018 U.S. App. LEXIS 4608 (2018).
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. In recent years, there has been a stream of litigation debating whether or not the “because of sex” language in Title VII applies to discrimination based on sexual orientation.
In Zarda, an employee alleged that he was fired for his sexual orientation. The employee was a sky diving instructor, and as such, would be attached to a customer on dives in order to properly release the parachute. The employee often mentioned his sexual orientation to female skydivers who were diving with their husband or boyfriend to “mitigate the awkwardness that might arise from the fact that he was strapped tightly to a woman.” After a customer complained, the employee was terminated and filed suit. The lower court and Second Circuit initially dismissed the case, but the full Second Circuit panel decided to hear the case en banc.
The Court held that “Title VII prohibits discrimination on the basis of sexual orientation as discrimination ‘because of sex.’” The Court provided three justifications for its holding. First, the Court reasoned that sexual orientation discrimination is motivated, at least in part, by sex and is therefore a subset of sex discrimination since an employer must know the sex of an employee in order to know his or her sexual orientation. Second, the Court held that sexual orientation discrimination is an example of sex/gender stereotyping. The U.S. Supreme Court in Price Waterhouse v. Hopkins (1989), ruled that sex stereotyping—punishing a worker for his/her failure to conform to gender norms—is a kind of sex discrimination and is illegal under Title VII. Finally, the court held that such discrimination constituted associational discrimination based on sex. Therefore, the Court held that the Plaintiff is entitled to bring a Title VII claim for discrimination based on sexual orientation.
Other Circuit Courts have come down on both sides of the issue, and the Supreme Court, while not this session, will still very likely decide the issue at some point in the future. The Sixth Circuit Court of Appeals (governing Ohio), has previously ruled that sexual orientation discrimination is not made illegal by Title VII. Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006). However, cases within the Sixth Circuit have found “appearance or mannerisms” or “gender nonconformity” to be illegal gender discrimination under Title VII.
Employers should be mindful of potential litigation, if not liability, that may arise from an adverse employment decision on the basis of an employee’s sexual orientation.
Attorneys at FHKAD routinely advise and defend employers. For more information, contact Marc Fishel at (614) 221-1216 or mfishel@fishelhass.com.