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Second Circuit Rules That Sexual Orientation Discrimination Violates Federal Law

Pencil erasing dicrimination word

Title VII of the Civil Rights Act of 1964 (Title VII) protects employees from discrimination on the basis of sex.  In Hivley v. Ivy Tech. Community College of Indiana, 853 F.3d 339 (7th Cir. 2017), the United States Seventh Circuit Court of Appeals became the first federal appellate court to hold that sexual orientation discrimination constitutes discrimination based on sex covered by Title VII.  Less than one month before the decision in Ivy was handed down, the United States Eleventh Circuit Court of Appeals held in Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017) that Title VII does not prohibit discrimination on the basis of sexual orientation.  After the Eleventh Circuit’s decision was rendered, Jameka Evans filed a petition for certiorari with the United States Supreme Court asking the Court to hear the case and rule that Title VII’s prohibition against sex discrimination also protects employees from discrimination on the basis of sexual orientation.  On December 11, 2017, the Supreme Court issued an order declining to exercise jurisdiction and hear the appeal.  Consequently, the Eleventh Circuit’s decision in Evans remains binding law in the Eleventh Circuit. 

Explicitly rejecting the holding in Evans, the United States Second Circuit Court of Appeals held in Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. Feb. 26, 2018) that sexual orientation discrimination is covered under Title VII’s prohibition against sex discrimination.  In doing so, the Zarda court overturned prior Second Circuit decisions in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) and Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005) holding that sexual orientation discrimination is not unlawful under Title VII.  Thus, the Second Circuit has become the second federal appellate court to hold that sexual orientation discrimination constitutes discrimination based on sex covered by Title VII.   

Employee Entitled To Bring Sexual Orientation Discrimination Claim

In Zarda, Donald Zarda (Zarda) brought a sex discrimination claim against his former employer, Altitude Express, Inc. (Altitude Express), alleging that he was fired on the basis of sexual orientation in violation of Title VII.  Zarda, a gay man, was employed by Altitude Express as sky-driving instructor.  As part of his job, he regularly participated in tandem skydives, strapped hip-to-hip and shoulder-to-shoulder with clients.  Because the work environment involved close physical proximity, Zarda’s co-employees frequently referenced his sexual orientation or made crude jokes around clients.  Zarda alleged that he sometimes told female clients his sexual orientation to allay any concern they might have to being strapped to a man for a tandem skydive.  On one occasion, Zarda told a female client that he was gay and “ha[d] an ex-husband to prove it.”  The client ultimately alleged that Zarda inappropriately touched her and disclosed his sexual orientation to excuse his behavior.  After the client’s boyfriend complained about the incident to Zarda’s supervisor, Altitude Express fired Zarda.    

The trial court dismissed Zarda’s sexual orientation discrimination claim under Title VII.  In doing so, the trial court adopted Altitude Express’ argument that Zarda had repeatedly testified at his deposition that he was fired because of his sexual orientation and sexual orientation discrimination was not prohibited by Title VII.  On appeal, the Second Circuit reversed the trial court’s dismissal of Zarda’s sexual orientation discrimination claim under Title VII and held that “sexual orientation discrimination is a form of sex discrimination” prohibited by Title VII.  In doing so, the Second Circuit ruled that Zarda “is entitled to bring a Title VII claim for discrimination based on sexual orientation.”

Legal Implications of Second Circuit’s Decision

Because the Second and Seventh Circuits have held that discrimination on the basis of sexual orientation is a form of sex discrimination prohibited by Title VII, the decisions in Zarda and Hively potentially open the door to a broad spectrum of claims alleging discrimination on the basis of sexual orientation.  The potential sexual orientation based claims that Zarda and Hively may now make available to employees include:

* An employer’s refusal to hire an individual on the basis of sexual orientation.

* An employer’s refusal to promote an employee on the basis of sexual orientation.

* The harassment of an employee on the basis of sexual orientation. 

* An employer’s discharge of an employee on the basis of sexual orientation.

* An employer’s retaliation against an employee for complaining about workplace discrimination or harassment on the basis of sexual orientation.

Unfortunately, neither the Second Circuit’s decision in Zarda nor the Seventh Circuit’s decision in Hively is binding on federal or state courts in Florida.  Federal courts in Florida are only bound by decisions of the United States Supreme Court and the Eleventh Circuit.  Indeed, Evans reflects that the Eleventh Circuit is free to ignore the decisions of other federal appellate courts which expand employee rights.  Florida state courts are only bound by the decisions of the United States Supreme Court, the Florida Supreme Court, and Florida District Courts of Appeal.  Because the decisions in Zarda and Hively are not binding in Florida, federal and state courts in Florida are not required to follow them.  Instead, the decisions in Zarda and Hively only constitute persuasive authority that Title VII’s prohibition against sex discrimination encompasses discrimination on the basis of sexual orientation.  However, Zarda and Hively are landmark decisions and demonstrate that other federal appellate courts may soon hold that discrimination on the basis of sexual orientation is a form of sex discrimination prohibited by Title VII.

Free Consultation With Citrus County Sex Discrimination Lawyers 

Based in Ocala, Florida and representing employees throughout Central Florida, we have extensive experience handling gender discrimination claims.  If you have been the victim of sex discrimination or have questions about discrimination on the basis of sexual orientation, please contact our office for a free consultation with our Citrus County, Florida gender discrimination attorneys.  Our employee rights law firm takes sex discrimination cases on a contingency fee basis.  This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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