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 by Title VII.

Lastly, courts have consistently held that “associational discrimination” is an illegal practice prohibited by Title VII. Therefore, that same prohibition should apply to discrimination against an individual based upon their association with a partner of the same sex.

The 2nd Circuit’s recent decision aligns it with the 7th Circuit Court of Appeals, Equal Employment Opportunity Commission, and several lower courts which have held that Title VII bars discrimination based upon an individual’s sexual orientation.

What does this mean for employers?
Currently, a court’s decision in a case with similar facts could go either way based upon the circuit in which it was brought. The 2nd Circuit Court of Appeals only has jurisdiction over claims coming out of New York, Vermont, and Connecticut. Similarly, the 7th Circuit’s opinion in Hively v. Ivy Tech, which held that Title VII covers sexual orientation discrimination claims, only applies to Illinois, Indiana and Wisconsin.  However, employers would be wise to view this recent opinion as a sign that the interpretation of Title VII and its application to claims of sexual orientation discrimination are expanding. Also, when providing training regarding discrimination and harassment in the workplace, employers should remember that the U.S. Supreme Court has ruled that gender stereotyping in the workplace is prohibited by Title VII and cannot be the basis for employment decisions.


About the Author:
Sherry D. O’Neal is a Member in Dickinson Wright’s Detroit office and is also the firm’s Pro Bono Coordinator. Sherry has successfully represented a wide variety of clients in federal, state and appellate courts with respect to unlawful discrimination, retaliation, harassment, wrongful discharge, ADA/disability, FMLA, FLSA, and ERISA claims. She can be reached at 313-223-3871 or