Sexual Orientation Recognized by Second Circuit as a Protected Characteristic

On Behalf of | March 6, 2018 | Employment Discrimination

Until recently, employees in New York City who wanted to file a sexual orientation discrimination case against their employer could sue under state law and the New York City Human Rights Law, but not federal law. On February 26, 2018 this changed with Zarda v. Altitude Express, Inc., —F.3d—(2d Cir. 2018). Today, in New York, Connecticut, and Vermont, as a matter of federal law, employers cannot discriminate against employees on the basis of their sexual orientation.

We are fortunate in New York State to have a state law that prevents discrimination in the workplace on the basis of a broad set of protected characteristics. This state law includes protections based on an employee’s “age, race, creed color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or domestic violence victim status.” New York Executive Law § 296. Similarly, New York City law includes protections based on an employee’s “actual or perceived age, race, creed, color, national origin, gender, disability, marital status, caregiver status, sexual orientation, uniformed service, or alienage or citizenship status.” New York City, N.Y., Admn. Code § 8-107(1)(a).

But while the words “sexual orientation” are included in the New York State and City laws, those words are absent in the federal employment discrimination law—Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge…or otherwise discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individuals’ race, color, religion, sex, or national origin.” The absence of the phrase ‘sexual orientation’ has created a puzzle for courts: does the language that prohibits discrimination “because of … sex” prohibit discrimination because of sexual orientation?

Last week, the Second Circuit answered that question with a resounding “yes!” With Zarda, the Second Circuit became one of only two Circuits that interpret the federal law this way (the other being the Seventh Circuit). The Court reasoned that “[b]ecause one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex.” “Indeed,” the Court continued, “sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted.” The relevant question is, for example: did the employer treat a man attracted to men the same as the employer would treat a woman attracted to men? If not, then the employer has discriminated “because of … sex.” To frame the question this way includes sexual orientation as a protected characteristic under Title VII: for the Second Circuit, sexual orientation discrimination cases are now seen as a subset of the broader category of sex discrimination cases.

The notion that anyone can advance their material position through hard work is a central ideal in the United States. Discrimination in the workplace subverts this concept by erecting artificial barriers to advancement. Discrimination creates unequal results for equal work. When employers discriminate on the basis of some impermissible characteristic, they interrupt a fundamental tenet that underpins our national identity. (Indeed, we declared independence on the basis of that ideal: “we hold these truths to be self-evident, that all [people] are created equal.”) Seen this way, discrimination on the basis of sexual orientation is unamerican. Last week, therefore, the law moved a step closer to being consistent with our national ideals.

But importantly, beyond talk of ideals, the Zarda opinion has real consequences for employees in New York, Connecticut, and Vermont. If you think you have been treated differently at your job because of your sexual orientation, today you may have a federal claim against your employer.