The Second Circuit recently joined the Seventh Circuit in determining that discrimination based on sexual orientation violates Title VII of the Civil Rights Act of 1964.

In Zarda v. Altitude Express, Inc., a skydiving instructor brought a sexual discrimination claim alleging that he was fired from his job because he failed to conform to male sex stereotypes. By recognizing sexual orientation under Title VII, the Second Circuit revived his claim, and remanded it for further proceedings.

Zarda v. Altitude Express, Inc. creates a further split among federal circuit courts. In March 2017, a divided panel of the Eleventh Circuit declined to recognize a sexual orientation claim. One month later, the Seventh Circuit held that discrimination on the basis of sexual orientation is a form of sex discrimination. The remainder of the federal circuits have yet to opine directly on the question.

In addition to the split in the federal circuits, the Equal Employment Opportunity Commission (EEOC) has also offered its opinion on the issue. The EEOC’s seventy-five page document of draft enforcement guidance on unlawful harassment, which is currently in the Office of Management and Budget awaiting approval before its release, does include sexual orientation as a protected class under Title VII.

Many states already protect sexual orientation under law. In fact, each state in the Second Circuit, which consists of New York, Vermont, and Connecticut, already recognizes sexual orientation as a protected class.

Due to the split in the federal circuit courts it seems likely that this question will either reach the Supreme Court in the coming years and/or be addressed by Congress.

For more information on this decision and how it might affect your business, please contact:

• Christopher P. Maugans
• Caroline J. Berdzik
• Or any member of the Employment and Labor Practice Group