Our firm had the privilege of representing a client in a federal lawsuit alleging gender based discrimination on account of his sexual orientation that involved gender stereotyping. That matter was resolved but it was a plausible avenue to the Supreme Court though leading cases were filed prior to that matter. The majority of federal circuits have failed to recognize such a cause of action, however the second and seventh circuit court of appeals have recognized that discrimination based upon sexual orientation is prohibited by Title VII of the Civil Rights Act of 1964 in the matter of Zarda v. Altitude Express, Inc.
In 2015, the Equal Employment Opportunity Commission in its Order recognized sexual orientation as a protected class under the scheme of gender based discrimination. See Baldwin v. Foxx, E.E.O.C. Decision No. 0120133080, 2015 WL 4397641, at *5 (July 16, 2015). The EEOC acknowledges that “its understanding of Title VII’s application to claims of sexual orientation discrimination –like society’s understanding of homosexuality more generally – has evolved over time.” Twenty-two states and a number of cities have enacted policies, ordinances, codes, and/or statutes or expanding expanding existing laws specifically prohibiting discrimination against gays and lesbians. A number of the communities refuse to accept bids from contractors that do not agree to similar terms and conditions specifically prescribing equal opportunity on the basis of sexual orientation. The definitions of sexual orientation are often limited textually to “sexual orientation” or are further expanded to include gay, lesbian, or bisexual.
In the matter before the second circuit, Donald Zarda alleged discrimination based upon his sexual orientation against Altitude Express. Zarda was a sky diving instructor who alleges that he was terminated because he failed to conform to masculine or male gender stereotypes. He was admonished for painting his toe nails pink or wearing pink clothing to work. The district court limited the analysis to “sex stereotypes” on the basis of “what you may wear or how you may behave” without considering the fact he dated other men. Zarda often informed female sky divers jumping with him in tandem that he was gay to alleve any concerns about the close physical proximity that such a form of jumping entails. The district court granted summary judgment determining “that Zarda failed to establish the requisite proximity between his termination and his proffered instances of gender non-conformity.” The conflict of law arises out of the second circuit’s prior holdings (as well as other circuits) that Title VII does not prohibit discrimination specifically on the basis of sexual orientation (Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000) and the holding by the United States Supreme Court that Title VII does forbid discrimination based on a failure to conform to “sex stereotypes,” Price Waterhouse v. Hopkins, 490 U.S. 228, 251. Zarda was able to proceed to the jury on his state law claims of discrimination but had to show “but-for causation” meaning the fact of his sexual orientation was the sole cause for his termination rather than a substantial factor which is the sole threshold required under Title VII. Zarda’s Title VII claim was dismissed on Defendant’s motion for summary judgment. However, the court reheard the matter en banc meaning the entire court. The second circuit held as follows: “We now hold that sexual orientation discrimination constitutes a form of discrimination “because of . . . sex,” in violation of Title VII, and overturn Simonton and Dawson v. Bumble & Bumble, 398 F.3d 211, 217–23 (2d Cir. 2005), to the extent they held otherwise.” The court in its analysis stated that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.” The Court concluded “the most natural reading of … [Title VII’s] prohibition on discrimination ‘because of … sex’ is that it extends to sexual orientation discrimination because sex is necessarily a factor in sexual orientation,” as one cannot fully define another’s sexual orientation without knowing the sex of that person and the person to whom he or she is attracted.
On a sad note, Zarda died in a sky diving accident prior to the second circuit hearing this case a second time “en banc.” The estate became the new Plaintiff asserting his rights.The implication of the competing holdings and this split in the varying circuits is that this case will likely be heard by the United Supreme Court. The high court is usually expected to accept a writ of certiorari when there exists such inconsistent holdings. The employer here has indicated it will not appeal to the Supreme Court leaving the seventh circuit court matter as the operative case to resolve the conflicting opinions.
https://www.americanprogress.org/wp-content/uploads/issues/2012/06/pdf/state_nondiscrimination.pdf
https://www.shrm.org/ResourcesAndTools/legal-and-compliance/state-and-local-updates/Pages/State-antibias-laws.aspx
https://cases.justia.com/federal/appellate-courts/ca2/15-3775/15-3775-2018-02-26.pdf?ts=1519659007
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