Opinion A forecast into the future of Title VII: sexual orientation as the new protected class

By Monique Gougisha Doucette and Atoyia Harris

BridgeTower Media Newswires

On Feb. 26, in Zarda v. Altitude Express, Inc., the Second Circuit Court of Appeals held in a 10-3 decision that discrimination based on sexual orientation is a violation of Title VII of the Civil Rights Act of 1964. In joining the controversial minority view and overruling its long-standing rule that sexual orientation is not a protected class, the Second Circuit opined that Title VII protects gay employees in the workplace.

Donald Zarda, the plaintiff, was a gay man who worked as a sky-diving instructor at Altitude Express Inc. Zarda worked closely with clients in tandem skydives and sometimes made comments to them about his sexual orientation. In June 2010, Zarda told a woman client that he was gay and had an ex-husband. After that client completed her skydiving jump, she claimed that Zarda touched her inappropriately and disclosed his sexual orientation to excuse his inappropriate behavior. Shortly thereafter, Altitude Express Inc. terminated Zarda's employment, stating that he failed to provide an enjoyable experience for the customer as the basis for its decision.

Zarda filed a lawsuit alleging that Altitude Express Inc. actually terminated his employment because he revealed his sexual orientation and failed to conform to the "straight macho male stereotype." The Second Circuit initially upheld the district court's dismissal of Zarda's Title VII claim based on its precedent that sexual orientation is not a protected class under Title VII. On rehearing, the Second Circuit noted that "Congress intended to make sex 'irrelevant' to employment decisions" when it enacted Title VII and reasoned that terminating an employee because he or she is gay is contrary to the legislative intent of Title VII.

In reaching this conclusion, the Second Circuit discussed three perspectives demonstrating that sexual orientation discrimination is a violation of Title VII: First, sexual orientation discrimination constitutes illegal sex discrimination (which is prohibited by Title VII) because sexual orientation is a "function" of sex. Second, sexual orientation discrimination equates sex discrimination because it is "invariably rooted in stereotypes about men and women," particularly assumptions about who an employee can or should be attracted to. Finally, sexual orientation discrimination is a form of sex discrimination because the employer's decision is predicated on an opposition to the romantic association between particular sexes.

The Zarda decision is yet another example of how Title VII's legal framework and its protections have evolved substantially since its enactment in 1964. Zarda also gives a glimpse of what potentially lies ahead, as it cited to last year's groundbreaking Hively v. Ivy Tech Community College of Indiana case, in which the Seventh Circuit noted that the conflicting court decisions on this issue have created "a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act." Applying that reasoning, the Seventh Circuit, in Hively, departed from precedent and ruled that workplace discrimination based on sexual orientation violates federal law. Although the Supreme Court recently declined an opportunity to determine whether Title VII prohibits sexual orientation discrimination in the Evans v. Georgia Regional Hospital case from the Eleventh Circuit, the Zarda decision almost guarantees guidance from the Supreme Court on this issue in the (possibly near) future.

In the meantime, employers (particularly multi-national employers) must be aware of this split among the circuit courts. It is therefore essential to review EEO policies, carefully implement precautionary anti-discrimination procedures and most importantly educate decision-makers about the continually evolving protections under Title VII regarding sexual orientation.


Monique Gougisha Doucette and Atoyia Harris are attorneys in the New Orleans office of Ogletree Deakins.

Published: Fri, Mar 23, 2018