New Prohibitions on Workplace Discrimination
March 19, 2018

Second Circuit finds workplace discrimination based on sexual orientation violates Title VII

For many years, the U.S. Circuit Courts of Appeals uniformly held that protection on the basis of sex under Title VII does not encompass sexual orientation discrimination claims.  However, recent developments at the U.S. Equal Employment Opportunities Commission (EEOC) and in reported cases at the district and circuit court levels show that some courts are re-considering what constitutes discrimination “because of … sex” under Title VII.

Most recently, in February 2018, the U.S. Court of Appeals for the Second Circuit reversed its prior precedent and held in Zarda v. Altitude Express, Inc., that sexual-orientation discrimination is discrimination under Title VII.  Noting that “the legal framework for evaluating Title VII claims has evolved substantially” since 1964, the Second Circuit, sitting en banc, concluded that “sexual orientation discrimination is a function of sex, and is comparable to sexual harassment, gender stereotyping, and other evils long recognized as violating Title VII, the statute must [therefore] prohibit it.”

In reversing itself, the Second Circuit followed suit with the Seventh Circuit Court of Appeals and the EEOC.  In April 2017, the Seventh Circuit, also sitting en banc, held in Hively v. Ivy Tech Community College of Indiana that discrimination on the basis of sexual orientation is a form of sex discrimination prohibited under Title VII.  The Hively decision, which reversed prior Seventh Circuit precedent, marked the first time a federal court of appeals extended Title VII’s protections to claims based on sexual orientation.

The EEOC has also interpreted Title VII’s prohibition on sex discrimination to include claims based on sexual orientation.  In July 2015, the EEOC concluded in Baldwin v. Foxx that sexual orientation is “inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.”

Not all circuit courts have followed the trend.  In March 2017, the Eleventh Circuit in Evans v. Georgia Regional Hospital stated it was bound by past precedent holding that sexual orientation was not a protected characteristic under Title VII and did not extend protection to sexual orientation discrimination.

The U.S. Supreme Court has not directly addressed the issue.  Therefore, this split in authority among federal circuits courts means that if an employee lives in within the jurisdiction of the Second or Seventh Circuits, federal law prohibits employers from discriminating based on sexual orientation.

What actions must employers take? Employers should review their relevant policies and practices to ensure they comply with the law in the jurisdictions in which they operate.  Keep in mind that numerous states and local municipalities have passed laws that explicitly prohibit discrimination based on sexual orientation, and employers must ensure compliance with those laws even if they do not have employees within the jurisdiction of the Second or Seventh Circuits.  Employers should also make sure that all employee anti-harassment training includes sexual orientation as a protected category.