The 2nd Circuit Court of Appeals’ Recent Decision Reveals That the Interpretation of Title VII and its Application to Sexual Orientation Discrimination Claims Continues to Evolve

In a 10-3 decision, the 2nd Circuit Court of Appeals recently ruled that Title VII of the Civil Rights Act of 1964 (Title VII) covers claims of sexual orientation discrimination.  In Zarde v. Altitude Express, the plaintiff sued his former employer, Altitude Express, under Title VII and New York law, alleging that he was terminated based on his sexual orientation. The trial court dismissed the plaintiff’s Title VII claim finding that it was not covered by the Act.  The plaintiff appealed to the 2nd Circuit Court of Appeals. After hearing the plaintiff’s appeal en banc, the Court issued an opinion in favor of the plaintiff.  The Court’s opinion provided three key reasons why Title VII protects employees from discrimination based upon sexual orientation. First, the Court found that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination” – in other words, an individual’s sexual orientation cannot be defined without identifying their sex or gender. Second, the Supreme Court has already ruled that Title VII bars employers from taking adverse actions against employees based upon their failure or refusal to conform to “gender norms”. The Court noted that “homosexuality represents the ultimate case of failure to conform to gender stereotypes.” Therefore, discrimination against a homosexual employee on the basis of their sexual orientation constitutes “sex stereotyping,” a practice that is prohibited...

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