Second Circuit to Rehear Case Considering Whether Title VII Includes Sexual Orientation as a Protected Class
The Second Circuit,* (serving six districts within the states of Connecticut, New York, and Vermont) will reconsider its position, currently aligned with the vast majority of federal Circuits, that Title VII of the Civil Rights Act of 1964 does not include sexual orientation as a protected class. Title VII prohibits discrimination in the employment context on the basis of race, color, religion, sex, and national origin. Subsequent acts of Congress have expanded that coverage to include pregnancy status, age, and disability. The question before the Second Circuit is whether “sex” includes “sexual orientation.”
The case, Zarda v. Altitude Express, involves a skydiving instructor, Donald Zarda, who sued his employer, Altitude Express for wrongful termination in violation of Title VII and New York state law for discrimination based on sexual orientation. The EEOC weighed in during the proceedings, issuing a decision setting forth their opinion that Title VII includes sexual orientation as a protected class. Baldwin v. Foxx.
Zarda lost the Title VII argument at the pleading stage based on contrary precedent holding that the Second Circuit did not recognize sexual orientation as a cognizable basis for a Title VII cause of action. Simonton v. Runyon. The Second Circuit refused to overturn Simonton, and thus consider the Title VII issue, because it could not overrule its own decision without sitting en banc.
That’s exactly what’s happening now. The Second Circuit announced that it would hear the case en banc, only weeks after the Seventh Circuit (serving Illinois, Indiana, and Wisconsin) became the first and only Circuit to hold that Title VII did include sexual orientation as a protected class. Hively v. Ivy Tech Community College of Indiana.
Risk Handling Tip: Depending on how the Second Circuit rules, the Zarda case may signal a jurisprudential sea change – either a widening circuit split or a potential petition to the Supreme Court. This is an evolving area of the law and while the Fourth Circuit (serving Maryland, Virginia, West Virginia, North Carolina, and South Carolina) has ruled that Title VII does not cover sexual orientation, employers are well advised to keep an eye on the courts of their jurisdiction and remember that Title VII protections can be supplemented by local and municipal governments in some cases.
- Zarda v. Altitude Express, 2d. Cir. No. 15-3775 (April 18, 2017).
- Baldwin v. Foxx, 2015 EEOPUB LEXIS 1905, 116 FEOR (LRP), 2 EEOC (HIS) 120133080 (E.E.O.C. July 16, 2015).
- Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000).
- Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. Apr. 4, 2012).
* One of twelve regional appellate courts within the federal judicial system, hearing appeals from regional federal district courts and federal administrative agencies.