On February 26, 2018, the U.S. Court of Appeals for the Second Circuit decided a landmark workplace discrimination case, becoming just the second federal appellate court to find that employment discrimination based on sexual orientation violates Title VII of the Civil Rights Act of 1964, which enumerates “sex” as one of the classes of workers protected from discrimination. Other so-called protected classes include race, color, religion, and national origin.
Most notably missing from the list of protected classes is anyone identifying as LGBT – often referred to as “sexual orientation.” In its 163-page opinion in Zarda v. Altitude Express, the court found that discrimination based on sexual orientation is necessarily subsumed within discrimination based on sex. In other words, one cannot occur without the other – and victims of such discrimination should enjoy the same legal protections as others subjected to such sex-based discrimination as receiving unequal pay, being exposed to sexualized jokes and comments, or enduring sexual harassment.
Zarda v. Altitude Express
The underlying facts of the case involved Donald Zarda, an openly gay skydiving instructor, who assured a female client – with whom he was to skydive in tandem – that he was gay, “and had an ex-husband to prove it.” The purpose of this comment was to assuage any concern the client might have about being strapped to a man for a tandem skydive. However, the client reported the comment to her boyfriend, who reported it to Zarda’s boss, and Zarda was fired shortly thereafter. Zarda’s attorneys argued that had he been a heterosexual male and made a similar jovial comment to a female tandem partner he would not have lost his job, as such comments would have been in keeping with the “straight male macho stereotype” pervasive in his workplace.
The Second Circuit Court relied upon the “persuasive force” of several opinions from other jurisdictions on the issue, as well as a 2015 non-binding decision by the federal Equal Employment Opportunity Commission to include LGBT status as within the coverage of sex discrimination protection. The court found that Congress originally intended that sex should be “completely irrelevant” to employment decisions, and that sexual orientation discrimination “is motivated, at least in part, by sex.”
The court rejected arguments made by amicus briefs supporting the employer, including one filed by the U.S. Department of Justice (DOJ), which asserted that Zarda was not fired for being a man but rather for being gay, and that one’s status as gay has been historically separate from one’s status as male or female. Denouncing this “semantic sleight of hand,” the court concluded that this argument is simply “failing to reference gender directly,” and “does not change the fact that a gay employee is simply a man who is attracted to men.”
The DOJ also contended that “it is not even remotely plausible that in 1964, when [the Civil Rights Act] was adopted, a reasonable person competent in the English language would have understood that a law banning employment discrimination ‘because of sex’ also banned discrimination because of sexual orientation.” The court rebuffed this argument, holding that “sexual orientation discrimination is a function of sex, and is comparable to sexual harassment, gender stereotyping, and other evils long recognized as violating [the Civil Rights Act], and the statute must prohibit it.”