Sexual orientation discrimination IS Title VII sex discrimination: 2nd Circuit

It took the 2nd Circuit 68 pages to conclude that "sexual orientation discrimination is … a subset of sex discrimination." Thus, sexual orientation discrimination violates Title VII. Zarda v. Altitude Express, Inc. (2nd Cir 02/26/2018) (en banc) (10-3) [PDF].

Here is the analysis in a nutshell:

"We now conclude that sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination. Looking first to the text of Title VII, the most natural reading of the statute’s prohibition on discrimination “because of . . . sex” is that it extends to sexual orientation discrimination because sex is necessarily a factor in sexual orientation. This statutory reading is reinforced by considering the question from the perspective of sex stereotyping because sexual orientation discrimination is predicated on assumptions about how persons of a certain sex can or should be, which is an impermissible basis for adverse employment actions. In addition, looking at the question from the perspective of associational discrimination, sexual orientation discrimination—which is motivated by an employer’s opposition to romantic association between particular sexes—is discrimination based on the employee’s own sex."

Overruling some of its prior decisions, the 2nd Circuit said:

"We now hold that sexual orientation discrimination constitutes a form of discrimination “because of . . . sex,” in violation of Title VII, and overturn [Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000)] and Dawson v. Bumble & Bumble, 398 F.3d 211, 217–23 (2d Cir. 2005), to the extent they held otherwise."

It does indeed seem that there has been a shift in thinking about sexual orientation discrimination. Once seen as not covered at all by Title VII, courts are using a variety of standard analytical techniques to conclude that sexual orientation discrimination IS sex discrimination prohibited by Title VII.