In an important development in the continued advancement of the law protecting the rights of members of the LGBTQ community, the federal Court of Appeals for the Second Circuit, whose decisions are binding on federal courts in Connecticut, New York, and Vermont, ruled that a major federal statute, Title VII of the 1964 Civil Rights Act, prohibits employment discrimination based on sexual orientation. The February 26, 2018 decision in Zarda v. Altitude Express, Inc., reversed earlier decisions by that Court and provided an expansive interpretation of Title VII’s prohibition of discrimination based on “sex,” which included sexual orientation discrimination.
The Court’s majority in Zarda observed that “Congress intended to make sex irrelevant to employment decisions,” and asserted that “the Supreme Court has held that Title VII prohibits not just discrimination based on sex itself, but also discrimination based on traits that are a function of sex, such as life expectancy, and non-conformity with gender norms.” The Court then explained that “applying Title VII to traits that are a function of sex is consistent with the Supreme Court’s view that Title VII covers not just the principal evils that Congress was concerned with when it enacted the statute in 1964, but also reasonably comparable evils that meet the statutory requirements. With this understanding in mind, the question before us is whether an employee’s sex is necessarily a motivating factor in discrimination based on sexual orientation. If it is, then sexual orientation discrimination is properly understood as ‘a subset of actions taken on the basis of sex.’”
The Court’s majority opinion answered that question in the affirmative, and provided several rationales supporting its conclusion. First, the Court explained that sex is a factor in sexual orientation discrimination because in order to ascertain a person’s sexual orientation, it is necessary to know both the sex of the person, as well as the sex of the persons to whom the person is attracted. Next, the Court said that its interpretation was supported by the conclusion that “but for” a person’s sex, they would not be subjected to discrimination based on their sexual orientation. The Court also explained that sexual orientation discrimination was a product of gender stereotypes which assume that persons of a certain sex should only be attracted to persons of another sex, and should act in a certain way. Since discrimination rooted in gender stereotypes violates Title VII, then discrimination based on sexual orientation is also prohibited.
Last, the Court described that principles of associational discrimination – – which prohibits discrimination against a person because of their association with another person in a way which implicates a protected class – – also supports the conclusion that Title VII prohibits discrimination based on sexual orientation. Courts had previously concluded that an employer engaged in associational discrimination in violation of Title VII if they discriminated against a white employee because they were married to a black person, or vice versa. In Zarda, the Second Circuit extended the prohibition against associational discrimination to all protected classes covered by Title VII, including sex.
The decision by the Second Circuit in Zarda follows a 2017 decision by another federal Court of Appeals in the Midwest which similarly concluded that Title VII prohibits discrimination based on sexual orientation.
While Connecticut law had previously made it illegal for employers to discriminate on the basis of sexual orientation, or gender identity or expression, it is important for those rights to be protected under federal law as well.