Another Federal Appeals Court has now ruled that discrimination based on sexual orientation constitutes illegal sex discrimination under Title VII. This deepens the split among the federal circuits and increases the likelihood that the United States Supreme Court will eventually enter the fray to settle the issue.
The case was brought by skydiving instructor Donald Zarda, who claimed he was fired after revealing to a client that he was gay. A federal judge in New York originally dismissed the case and a three-judge panel of the 2nd Circuit Court of Appeals affirmed. The matter was then presented to the full 2nd Circuit (covering New York, Vermont and Connecticut) for review.
Differential Treatment
By a 10-3 majority, the 2nd Circuit ruled in Zarda’s favor, concluding that “[s]exual 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.” Therefore, it is “impossible for the employer to discriminate on the basis of sexual orientation without taking sex into account.”
The opinion bolstered this conclusion in several ways. First, it posed the question of whether Zarda would have been treated differently had he been a woman, and determined that the answer presumably would have been yes – since Zarda was fired for expressing romantic attraction to men, expressing that same attraction as a woman probably would not have led to termination.
Gender Stereotypes
In addition, the opinion noted that Title VII bars employers from punishing workers for their failure to conform to gender norms. In this case, homosexuality “represents the ultimate case of failure to conform to gender stereotypes,” namely the stereotype that men should only date women. As such, firing Zarda for not conforming to the sex stereotype violated Title VII.
Finally, the opinion likened this issue to cases where employees are considered to have been victimized by race discrimination if they were fired for being married to a person of a different race. If Title VII bans “associational discrimination” based on race, why would it not also ban such discrimination based on sex?
Accordingly, the 2nd Circuit joined with the 7th Circuit (and disagreed with the 11th Circuit who has ruled exactly the opposite) in declaring that discrimination based on sexual orientation violates Title VII’s ban on sex discrimination. Unfortunately, this decision came too late to benefit Zarda himself, who died in a base-jumping accident in Switzerland in 2014. His estate and relatives have elected to carry on with the case.
Bottom Line
What is the impact in Minnesota? Not much, since the Minnesota Human Rights Act has prohibited discrimination based on sexual orientation for many years. In neighboring states like North Dakota where there is no similar prohibition in the state law, this ruling could be major. While the 2nd Circuit precedent does not automatically apply to employers here in the 8th Circuit, the fact that another federal circuit has ruled in this fashion may eventually influence the 8th Circuit to rule similarly. That in turn would allow Minnesota employees to pursue claims in the federal administrative and judicial arenas in addition to the state agencies and courts.
As this issue continues to unfold nationally, we can expect that the United States Supreme Court will eventually weigh in to decide the matter. Congress could also choose to amend Title VII to declare an explicit ban on sexual orientation discrimination. Until either of those events transpires, however, we anticipate that this show-down in the federal circuits will continue.