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The 2nd U.S. Circuit Court of Appeals—which covers Connecticut, New York, and Vermont—recently reversed course and held that discrimination based on sexual orientation amounts to discrimination based on sex in violation of Title VII of the Civil Rights Act of 1964.

In June 2017, we reported that a panel of the 2nd Circuit had declined the opportunity to reconsider past precedent and continued to hold that sexual orientation discrimination wasn’t actionable under Title VII.

The court, now with the full bench, has revisited this issue and reversed itself and its past precedents by unequivocally holding that discrimination based on sexual orientation is discrimination based on sex in violation of Title VII.


Donald Zarda, now deceased, was a skydiving instructor formerly employed by Altitude Express. Zarda was a homosexual and often disclosed his sexual orientation to patrons. Following his termination by Altitude Express, he asserted he was fired because of his sexual orientation, while the company claimed it let him go because of customer complaints. Zarda filed a lawsuit in the U.S. District Court for the Eastern District of New York alleging he was discriminated against because of his sexual orientation under both New York law and Title VII.

The district court, following 2nd Circuit precedents, dismissed Zarda’s Title VII claim, holding that discrimination based on sexual orientation doesn’t amount to discrimination based on sex under the law. On appeal—and despite a 2015 Equal Employment Opportunity Commission (EEOC) decision that held to the contrary—a panel of the 2nd Circuit affirmed the district court.

The 2nd Circuit then took the unusual step of agreeing to convene en banc (with all the judges together) to reconsider the precedents relied on by the district court, including Simonton v. Runyon, 232 F.3d 33 (2d Cir., 2000), and Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir., 2005).

In a passionate 69-page opinion, which contains a number of additional concurring and dissenting opinions, the 2nd Circuit overruled its own prior precedents, including Simonton and Dawson, and tossed out the district court’s decision on the Title VII claim.

The 2nd Court now holds that Title VII prohibits discrimination on the basis of sexual orientation: “Because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.” Noting that legal doctrine evolves over time, the majority of the 2nd Circuit held that:

Title VII’s prohibition on sex discrimination applies to any practice in which sex is a motivating factor. . . . 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 of 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.

What’s Next?

The 2nd Circuit now joins the 7th Circuit in holding that Title VII prohibits discrimination based on sexual orientation. The 11th Circuit declined the opportunity to decide such a question in 2017, and no similar case has gone to the U.S. Supreme Court. It’s likely the Supreme Court will hear a sexual orientation discrimination case in the near future.

For employers in the 2nd Circuit—specifically New York—the New York Human Rights Law and other local laws have long since prohibited discrimination based on sexual orientation. However, since sexual orientation discrimination is now actionable under Title VII, expect to see more federal litigation. Please contact Ethan Allen HR to update policies and training if needed.