Second Circuit Sitting En Banc Holds that Title VII Prohibits Discrimination on the Basis of Sexual Orientation

Decision Overturns Second Circuit Precedent and Deepens Circuit Split on the Issue February 27, 2018
Yesterday, the Second Circuit, sitting en banc, held in a 10 to 3 decision that “Title VII prohibits discrimination on the basis of sexual orientation as discrimination ‘because of . . . sex.’” Zarda v. Altitude Express, Inc., No. 15-3775. The Second Circuit now joins the Seventh Circuit as the only courts of appeals to so hold. All other courts of appeals to consider the question have held that sexual orientation discrimination is not prohibited by Title VII.

Last year, Chief Judge Katzmann, in a concurring opinion to Christiansen v. Omnicom Group, Inc., 852 F.3d 195 (2d Cir. 2017), called for the Second Circuit to “revisit” its precedent that sexual orientation discrimination is not prohibited by Title VII, as we discussed in our previous blog post. When the Second Circuit agreed to do so in Zarda, the EEOC and Department of Justice filed opposing amicus briefs. The EEOC argued that sexual orientation claims fall within Title VII’s prohibition against discrimination “on the basis of sex,” while the DOJ took the opposite position.

The decision, authored by Chief Judge Katzmann, acknowledged that sexual orientation discrimination was “not the principal evil that Congress was concerned with when it enacted Title VII” but nevertheless concluded that sexual orientation discrimination is a subset of sex discrimination in part “because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted.” The court also reasoned that sexual orientation discrimination constitutes discrimination “on the basis of sex” because “[s]exual orientation discrimination is also based on assumptions or stereotypes about how members of a particular gender should be, including to whom they should be attracted.” A number of judges filed concurring opinions, and Judges Livingston, Lynch, and Raggi each filed dissents.

On December 11, 2017, the Supreme Court declined to consider this question, despite the existence of a circuit split on the question. With this decision deepening the split, the Supreme Court may be presented with another opportunity to address the question.

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