By: Brittany Flaherty Theis

On February 26, 2018, the United States Court of Appeals for the Second Circuit issued an opinion in which the court held that Title VII prohibits discrimination on the basis of sexual orientation as discrimination “’because of . . . sex.’” Zarda v. Altitude Express, Inc., 2018 U.S. App. LEXIS 4608 (2d Cir 2018). In doing so, the Second Circuit overturned prior precedent in its circuit that held otherwise. The court’s decision made the Second Circuit the second federal appellate court to explicitly hold that Title VII prohibits employment discrimination based on sexual orientation. The first circuit to do so was the Seventh Circuit, of which Illinois is a part, in Hively v. Ivy Tech Community College of Indiana. (853 F.3d 339 (7th Cir. 2017).) Conversely, the Eleventh Circuit declined to recognize as viable a claim of sexual orientation discrimination under Title VII in Evans v. Georgia Regional Hospital. (850 F.3d 1248 (11th Cir.), cert. denied, 138 S.Ct. 557 (2017).) The split between circuits on the topic of whether Title VII protects individuals against discrimination on the basis of sexual orientation is growing.

Title VII provides, in relevant part:

It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge . . . or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin . . . .

In Zarda, the Second Circuit explained that it is well-settled that gender stereotyping violates Title VII’s prohibition on discrimination “’because of . . . sex,’” but went on to explain that the Second Circuit had previously held that sexual orientation discrimination claims do not fall under the protection of Title VII. When the prior precedent was decided, the Second Circuit’s decision was consistent with other circuits, as well as the position of the Equal Employment Opportunity Commission (“EEOC”). For the first time in 2015, however, the EEOC held that because sexual orientation is inherently a “sex-based consideration” an allegation of sex discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII. Also since that time, the Hively and Evans cases were decided. For that reason, the Zarda court decided to convene en banc to reevaluate the Second Circuit precedent.

The Second Circuit explained that “Title VII’s prohibition on sex discrimination applies to any practice in which sex is a motivating factor.” Sexual orientation is defined by one’s sex in relation to the sex of those to whom the individual is attracted, which, the court held, makes it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account. The Second Circuit concluded that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.” The court also explained that its decision is further supported by the Supreme Court’s “comparative test,” which tells courts to determine whether the trait that is the basis for discrimination is a function of sex by asking whether an employee’s treatment would have been different “but for the person’s sex.” (An analysis that was also performed by the Seventh Circuit in Hively, wherein the court asked whether Hively, who claimed she was discriminated against for being a lesbian, would have been treated the same way if she had been a man but the sex of her partner remained the same. The Seventh Circuit agreed with Hively that, when presented this way, Hively’s was a claim of sex discrimination.)

Both Hively and Zarda indicate evolution in the interpretation of the protection provided by Title VII, but also signal a growing split amongst the circuits, which will ultimately need to be decided by the United States Supreme Court. Although the Illinois Human Rights Act prohibits employers in Illinois from discriminating against employees on the basis of their sexual orientation, Hively allows employees to pursue employment discrimination claims based on sexual orientation in federal court instead of state court. Zarda does for individuals in states from the Second Circuit what Hively did for individuals in Illinois – affirm the existence of a federal path for such claims under Title VII in addition to claims based on state law.

Attorneys at Whitt Law have vast employment law and litigation experience – both in reviewing employer policies, practices, and procedures, as well as evaluating claims. If you have questions regarding the Hively or Zarda cases, please contact Whitt Law Attorney Brittany Flaherty Theis. If you have questions regarding potential litigation, please contact Whitt Law Partner James Dougherty.

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