We have steadily followed the evolving legal landscape, including the emerging circuit court split, surrounding whether the federal anti-discrimination law, Title VII, prohibits discrimination based on sexual orientation or gender identity.

On Feb. 26, 2018, all of the judges of the Second Circuit Court of Appeals heard an appeal seeking the reinstatement of a Title VII claim brought by the estate of a former employee, Donald Zarda, claiming discrimination based on sexual orientation. The claim alleges that Zarda, a former skydiving instructor, was fired after he told a customer that he was gay. In an ultimately divided opinion by the Second Circuit’s judges, the majority of the Court retreated from its own precedent and decided that the Title VII claim should, indeed, be reinstated.

The narrow question before the Zarda court was whether Title VII prohibits discrimination on the basis of sexual orientation such that the Second Circuit’s earlier opinions to the contrary should be overruled. This same question has divided federal appeals courts across the country.

The Seventh Circuit Court of Appeals previously ruled that Title VII does, indeed, prohibit discrimination on the basis of an individual’s sexual orientation. Meanwhile, the Eleventh Circuit has previously held that Title VII does not extend to sexual orientation discrimination. The same issue has also caused a split between the federal Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice, which offered opposing arguments to the Second Circuit in the Zarda case.

In its decision, the majority of the Second Circuit ultimately sided with the Seventh Circuit and the EEOC. In doing so, the court concluded that “Title VII’s prohibition on sex discrimination applies to any practice in which sex is a motivating factor …. 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.”

In so holding, the Zarda majority also noted that at the time that Congress passed Title VII, it likely did not intend that the law would apply to sexual orientation discrimination. However, in support of its ruling, the court noted that sexual harassment too was not originally covered by Title VII, but the scope of the law has nevertheless changed to encompass such acts.

While several dissenting opinions were included in the Zarda ruling, one notable basis for dissent emphasized the fact that Congress had (presumably intentionally) omitted sexual orientation discrimination as a protection provided under Title VII. Moreover, at the time that Congress enacted Title VII (in the early 1960s), same-sex sexual relations were criminalized in nearly every state. As such, the dissenting judges were unable to interpret the text of Title VII in such a way that would demonstrate that Congress intended to protect gay employees at the time it passed the law.

This area of Title VII law continues to evolve rapidly. We will continue to provide updates as future developments unfold.

This article originally appeared on the Foley & Lardner website. The information in this legal alert is for educational purposes only and should not be taken as specific legal advice.

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Angelica L. Boutwell

Angelica L. Boutwell

Angelica L. Boutwell is an associate and litigation lawyer with Foley & Lardner.