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Posted by Adam Braverman | Apr 19, 2018 | 0 Comments

A recent decision out of the United States Court of Appeals for the Second Circuit may help influence the extension of federal anti-discrimination protections to employees across the United States. Specifically, the court ruled that sexual orientation discrimination is a form of sex discrimination and, therefore, prohibited under Title VII of the Civil Rights Act of 1964.

Title VII does not explicitly include “sexual orientation” as a protected factor based on which an employer may not discriminate. In recent years, 20 states—including New York—have passed laws protecting employees from discrimination based on their sexual orientation or gender identity. However, despite proposing the Employment Nondiscrimination Act (ENDA) and the Equality Act numerous times, Congress has yet to officially pass a federal law that protects employees nationwide from this type of discrimination.

Despite the lack of explicit statutory protections, the Equal Employment Opportunity Commission (EEOC) has taken the position in recent years that sexual orientation discrimination is a form of sex discrimination included under Title VII restrictions. The Department of Justice under the Trump administration has taken the opposite stance, and the two clashed in the recent Second Circuit case. 

Details of the Ruling

Zarda v. Altitude Express, Inc. revolved around a skydiver who asserted he was fired due to his sexual orientation and failure to adhere to gender stereotypes. The District Court ruled against the plaintiff, partially because the Second Circuit had previously held that sexual orientation was not prohibited under Title VII. However, the appeals court reversed its previous position, this time siding with the plaintiff and the EEOC and ruling that sexual orientation falls under the umbrella of sex discrimination prohibited by Title VII.

The court supported its decision for the following reasons:

  • Sexual orientation directly relates to a person's sex in determining which sex a person is attracted to.
  • Sexual orientation discrimination inherently involves associational discrimination based on the gender of a chosen partner.
  • Sexual orientation discrimination is also regularly based on stereotypes of how a member of a certain sex should or should not behave, including the sexual relationships a person should choose.

This decision came less than a year after the U.S. Court of Appeals for the Seventh Circuit ruled in a similar manner, departing from the rulings of most of the federal circuits. The Second Circuit ruling deepens the divide on the matter, which makes it likely that the U.S. Supreme Court will agree to hear the matter, perhaps in the coming term. This is a highly important matter for employees and employers across the nation—and you can trust that Adam Braverman will carefully watch for any new developments on the issue, including a SCOTUS ruling.

Contact a New York City Employment Discrimination Attorney for More Information

Courts can reinterpret or strike down employment discrimination laws, and legislatures can change them. This can make knowing your rights as an employee or employer difficult to know. If you have any questions regarding discrimination laws or believe that your employer violated your rights, do not hesitate to discuss the matter with New York City employment lawyer Adam Braverman. Call him at (212) 206-8166 or contact him online today.

About the Author

Adam Braverman

I come to my current practice of law at the end of an interesting journey. After graduating Phi Beta Kappa from UC Berkeley, and receiving my J.D. from the UC Berkeley School of Law, I chose corporate law, concentrating in venture capital and mergers and acquisitions. I was drawn to the challenge...


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