The U.S. Second Circuit Court of Appeals, which has jurisdiction over all federal courts in the State of New York, issued a landmark employment discrimination ruling on February 26. By a vote of 10-3, the full Court held that “sex discrimination” under Title VII of the federal Civil Rights Act of 1964 includes discrimination on the basis of a person's sexual orientation. This ruling overturned prior precedent from the Second Circuit and potentially sets the stage for a Supreme Court review of federal law in this area.
Sexual Orientation as a “Subset” of Sex
The Second Circuit case, Zarda v. Altitude Express, Inc., is one we have covered in previous blog posts. The basic facts of the case are simple. The plaintiffs are the executors of the estate of a now-deceased man who previously worked as a skydiving instructor for the defendant. He maintained that he was fired after telling several female clients he was gay. Nearly eight years ago, the decedent filed a federal sex discrimination lawsuit.
Title VII clearly prohibits discrimination on the basis of sex but it does separately refer to “sexual orientation” as a protected class in the way that New York State and New York City human rights laws do. Historically, courts throughout the country, including the Second Circuit, have said that sexual orientation is not a subset of sex for purposes of federal law.
The Second Circuit has now reversed that position. In a majority opinion written by Chief Judge Robert A. Katzman, the Court said unequivocally, “We now conclude sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.” Katzman said this view is consistent with a “natural reading” of Title VII and is “reinforced by considering the question from the perspective of sex stereotyping because sexual orientation discrimination is predicated on assumptions about how persons of a certain sex can or should be, which is an impermissible basis for adverse employment actions.”
Katzman also cited a recent opinion by the Second Circuit's sister court, the U.S. Court of Appeals for the Seventh Circuit in Chicago, which held that a lesbian professor could sue her school after it failed to promote her, allegedly “because of her sexual orientation.” The Seventh Circuit noted that if true, the professor presented a claim that she “would not have been denied a promotion but for her sex, and therefore sexual orientation is a function of sex.” In other words, if an employer bases an employment action, even partly, on the fact that a female employee is attracted to women rather than men, that falls within the federal definition of sex discrimination.
Speak With a New York City Employment Discrimination Lawyer Today
As noted above, three judges dissented from the majority's holding. None of the dissenters argued that sexual orientation discrimination should not be illegal. But they maintained, consistent with historical precedent, that it was not covered under the existing language of Title VII, and only Congress could change the law.
Indeed, other federal courts continue to adhere to the traditional interpretation of the law. Ultimately, the Supreme Court may have to resolve this conflict. Until then, LGBT workers in New York have cause to celebrate. If you have been affected by any form of sex discrimination at work and need assistance from a qualified New York employment law attorney, contact the Law Offices of White, Nisar & Hilferty, LLP. at (646) 760-6493.