2d Circuit Holds, En Banc, That Title VII Prohibits Discrimination Based on Sexual Orientation

In Zarda v. Altitude Express, Inc. (2d Cir. 15-3775 Feb. 26, 2018) (en banc), decided today by an en banc (i.e., full) Second Circuit panel, held that Title VII of the Civil Rights Act of 1964’s prohibition on discrimination “because of … sex” extends to sexual orientation.

The court’s 69-page majority opinion aligns Second Circuit law with positions taken by other Circuits, as well as the U.S. Equal Employment Opportunity Commission.

The court wrote:

[T]he law is clear: To determine whether a trait operates as a proxy for sex, we ask whether the employee would have been treated differently “but
for” his or her sex. In the context of sexual orientation, a woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women. We
can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.

It also wrote that discrimination based on sexual orientation is encompassed by Title VII on a “gender stereotyping” theory, reasoning that “sexual orientation discrimination is almost
invariably rooted in stereotypes about men and women.”

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