Can you be Terminated Based on Sexual Orientation?

It may be surprising to many, but it remains unclear whether the Civil Rights Act protects discrimination on the basis of sexual orientation.


            Enacted in 1964, Title VII of the Civil Rights Act applies to any employer who has fifteen or more employees and is engaged in an industry affecting commerce (i.e. almost any industry). The Act was proposed by President John F. Kennedy during the height of the civil rights movement.  Facing staunch opposition from Southern politicians, the Act was nevertheless pushed through Congress by President Lyndon B. Johnson, with vocal support from the NAACP and Dr. Martin Luther King, Jr., following Kennedy’s 1963 assassination.  Title VII’s most forceful and substantive clause reads:

It shall be an unlawful employment practice for an employer – (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin . . .

Civil Rights Act of 1964, 42 U.S. Code §2000e-2 (a)(2018)(emphasis added).

            What is meant, though, when the Act prohibits discrimination “because of [an] individual’s . . . sex?”  Like many interesting questions of law, one can sincerely attribute a wide variance of meaning to a small number of operative words in this statute.  There is little evidence that the people who enacted this statute contemplated that one’s sexual orientation could form the basis of action under the Act; so then, does “on the basis of sex” merely refer to one’s biological gender? Was this phrase only meant to protect women from discriminatory practices? Or, ascribing a more current and likely a more commonly accepted meaning of the phrase today, particularly in light of recent judicial developments such as Obergefell v. Hodges, 135 S.Ct. 2584 (2015), does discrimination “because of . . . sex” naturally include discrimination based on one’s sexual orientation?

            The question has never been specifically raised to the United States Supreme Court, likely because each of the Federal Circuit Courts of Appeal[1] has, until recently, been in agreement.  Prior to 2017, each of the United States Circuit Courts to address the issue had applied the more traditional meaning to the term “sex,” as being synonymous with the word “gender” as “biologically male or female” and concluded, even when considering fact patterns of egregiously cruel harassment and mistreatment,  that workplace discrimination on the basis of sexual orientation was not protected against by the Title VII of the Civil Rights Act.  See, e.g., Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000); Kalich v. AT&T Mobility, LLC, 679 F.3d 464, 471 (6th Cir. 2012); Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 289 (3d Cir. 2009); Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005); Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138, 143 (4th Cir. 1996),[2] et al.  In 2017, however, an en banc empaneling[3] of the Second Circuit Court of Appeals applied a contrary interpretation of the Act, an interpretation to be affirmed or reversed this term by the United States Supreme Court. 

            Donald Zarda (now deceased), a gay man, worked for a time as a sky-diving instructor for defendant Altitude Express.  Zarda would often conduct tandem jumps with clients.  A tandem jump is where an untrained person wishing to sky-dive is strapped closely with a trained instructor and they perform the dive while attached to one another.  Zarda would sometimes tell his female clients about his sexual orientation to assuage any concerns they may have about having such close physical contact with a strange male.  While the facts between the parties remain in dispute, Zarda alleged that he was unlawfully fired from this job after a female client complained to his employer about his sexual orientation.  He alleged that his sexual orientation was the sole basis for his termination from Altitude Express and brought a legal action against his former employer, claiming, in part, a violation of Title VII of the Civil Rights Act.

            Following the well-established precedent cited above, the trial court dismissed Zarda’s claims brought pursuant to Title VII.  The case was appealed to the Second Circuit Court of Appeals (Comprised of the Federal Districts of Connecticut, New York, and Vermont).  The initial panel of three judges upheld the trial court, similarly finding that legal precedent (including their own, see, Simonton v. Runyon, 232 F.3d at 35), bound them to the interpretation that the Act did not protect against this type of discrimination.  This determination was reversed, however, by the en banc panel of the full Court, who considered the meaning of discrimination “because of . . . sex” and concluded:

            Since 1964, the legal framework for evaluating Title VII claims has evolved substantially . . .

            Title VII’s prohibition on sex discrimination applies to any practice in which sex is a motivating factor.  42 U.S.C. §200e-2(m).  As explained above, sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.  Sexual orientation discrimination is also based on assumptions or stereotypes about how members of a particular gender should be, including to whom they should be attracted.  Finally, sexual orientation discrimination is associational discrimination because an adverse employment action that is motivated by the employer’s opposition to association between members of particular sexes discriminates against an employee on the basis of sex.  Each of these three perspectives is sufficient to support this Court’s conclusion and tighter they amply demonstrate that sexual orientation discrimination is a form of sex discrimination.

            Although sexual orientation discrimination is “assuredly not the principal evil that congress was concerned with when it enacted Title VII,” “statutory prohibitions often go beyond the principal evil to cover reasonable comparable evils.” [citation omitted] In the context of Title VII, the statutory prohibition extends to all discrimination “because of . . . sex” and sexual orientation discrimination is an actionable subset of sex discrimination.

Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018). In reaching this conclusion, the full Court noted the “sea change in the constitutional framework governing same-sex marriage.” Id. at FN. 33. Because this case (and a few others taking place around the country at approximately the same time) marked a departure from the traditional analysis of Title VII, the United Supreme Court granted certiorari to hear the case and it was docketed for the 2019 – 20 Term of Court.  Arguments were heard in October 2019 and a ruling is expected this summer, although it is currently unknown if the Coronavirus outbreak will delay the release of this term’s opinions.  It is a fascinating case not only due it’s wide-reaching societal impacts, but also because at its heart is the classic legal conflict between the likely intent of the law’s drafters or applying a statute’s language as it is more likely understood by today’s readers.  It will certainly be one of the most closely watched cases of this year’s United States Supreme Court Term.


[1] The Federal Judiciary is divided into thirteen geographical judicial circuits, each presided over by a United States Court of Appeals, that operate at a level below the United States Supreme Court.  Most legal issues are addressed with finality at the U.S. Circuit Court level, particularly when there is agreement on a subject between the U.S. Courts or Appeal.

[2] Binding in South Carolina unless reversed by United States Supreme Court.

[3] Federal Courts of Appeal typically hear and decide cases in panels of three randomly chosen Judges.  The Court may, however, when determining an issue the Court believes of legal import, have the entire Court preside over a case.  When this occurs, it is said that the Court hears a case “en banc,” a French word meaning “in bench.”

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