Second Circuit Holds that Title VII Covers Sexual Orientation Discrimination

Today, the en banc Second Circuit held in Zarda v. Altitude Express that Title VII did cover sexual orientation discrimination. The majority opinion also finds that gender stereotyping is an independent basis for ruling in the plaintiff’s favor.

Several judges dissented on the grounds that when it came to statutory interpretation, the court’s duty was to apply the statute, not to expand it. Judge Lynch wrote the primary dissenting opinion which discusses the harms of discrimination and the history of how gender discrimination came to be included in Title VII, but concludes that it is up to Congress to amend Title VII, not the courts. It remains to be seen if the Supreme Court will address this issue in the near future.

While the plaintiff, a sky diver, had also brought New York state law claims, he lost on those claims at the jury trial.

Donald Zarda brought this suit against his former employer alleging, inter alia, sex discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq. In particular, Zarda claimed that he was fired after revealing his sexual orientation to a client. The United States District Court for the Eastern District of New York (Bianco, J.) granted summary judgment to the defendants on the ground that Zarda had failed to show that he had been discriminated against on the basis of his sex. After the Equal Employment Opportunity Commission (“EEOC”) decided Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 WL 4397641 (July 15, 2015), holding that sex discrimination includes sexual orientation discrimination, Zarda asked the district court to reinstate his Title VII claim. The district court, citing our decision in Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000), declined to do so. Zarda appealed and a panel of this Court affirmed.

We convened this rehearing en banc to consider whether Title VII prohibits discrimination on the basis of sexual orientation such that our precedents to the contrary should be overruled. We now hold that sexual orientation discrimination constitutes a form of discrimination “because of . . . sex,” in violation of Title VII, and overturn Simonton and Dawson v. Bumble & Bumble, 398 F.3d 211, 217-23 (2d Cir. 2005), to the extent they held otherwise. We therefore VACATE the district court’s judgment on the Title VII claim and REMAND for further proceedings consistent with this opinion. We AFFIRM the judgment of the district court in all other respects.