On February 26, 2018, the US Court of Appeals for the Second Circuit became the second federal circuit to hold that Title VII of the Civil Rights Act of 1964 (Title VII) prohibits sexual orientation discrimination.
In Zarda v. Altitude Express, the Second Circuit revived a lawsuit filed by the estate of Donald Zarda against his former employer, whom the estate contends discriminated against Zarda by terminating his employment after he communicated his sexual orientation to a customer. The court concluded that the natural reading of Title VII’s prohibition on discrimination based on sex extends protection to employees based on their sexual orientation. The court explained that “sexual orientation 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.” The dissenting opinion explained, however, that no fair reading of Title VII would support the conclusion that Congress intended to include sexual orientation as a protected category, particularly considering that “same-sex sexual relations were criminalized in nearly every state,” and discrimination against gay men and women was not open for public debate when Congress passed Title VII.
The Zarda decision is the latest Title VII case addressing whether sexual orientation is inextricably linked to sex and, therefore, protected under federal law. However, a number of states—including California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Washington...
