Second Circuit Decides Title VII Prohibits Sexual Orientation Discrimination

By Kelsey Basten

Published on March 6, 2018

The Second Circuit Court of Appeals ruled Feb. 26, 2018 that Title VII of the Civil Rights Act bans employers from discriminating against employees for sexual orientation.

The Second Circuit’s decision in Zarda v. Altitude Express, Inc. involved a male employee who alleged he was fired due to his sexual orientation.

The circuit court ruled that sexual orientation is covered under sexual discrimination for a few reasons. First, the court stated, “sexual orientation discrimination 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.” Therefore, sexual orientation is a function of sex, which is protected by Title VII.

Second, the court decided sexual orientation discrimination comes from gender stereotypes about men and women, and whom they should be attracted to based on sex. The court stated gender stereotypes cannot be a motive for employment actions, and that it is impossible to separate moral beliefs about sex from moral beliefs about sexual orientation, making sexual orientation discrimination protected by Title VII.

Last, the court compared sexual orientation discrimination to race discrimination. As in an employer cannot fire an employee for being married to someone of a certain race, just as employers cannot fire an employee for associating with someone of a particular sex.

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