On February 26, 2018, the en banc Second Circuit in Zarda v. Altitude Express joined the Seventh Circuit in concluding that sexual orientation discrimination is a subset of sex discrimination entitled to the protections afforded under Title VII of the Civil Rights Act of 1964. The majority of federal courts have held that Title VII does not prohibit sexual orientation discrimination.

The Zarda court interpreted Title VII’s proscription of discrimination based on “sex” to mean that sexual orientation discrimination is covered, finding that sexual orientation discrimination is “motivated, at least in part, by sex and is thus a subset of sex discrimination.”

The Second Circuit contended that at the “most natural reading” of the prohibition on discrimination “because of sex,” is based upon the assertion that “sex is necessarily a factor in sexual orientation.” Given that one cannot define a person’s sexual orientation without identifying his or her sex, the court held that sexual orientation is a “function of sex.” The court held that its conclusion was reinforced by the Supreme Court’s “comparative test” for determining whether an employment practice is sex discrimination, quoting L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978), which asks whether an employee’s treatment would have been different “but for that person’s sex.” (emphasis added).

The Second Circuit also heavily relied on the Seventh Circuit’s recent opinion in Hively v. Ivy Tech Community College (7th Cir. 2017), which squarely held that “discrimination on the basis of sexual orientation is a form of sex discrimination.” In Hively, the Seventh Circuit considered the sexual orientation question in the context of a female professor, who was attracted to other females, and was denied a promotion. The court considered a hypothetical scenario in which the professor was actually a male, attracted to women, who received a promotion. The Second Circuit found the Seventh Circuit’s reasoning persuasive, stating, “the Seventh Circuit concluded that, as alleged, Hively would not have been denied a promotion but for her sex, and therefore sexual orientation is a function of sex. From this conclusion, it follows that sexual orientation discrimination is a subset of sex discrimination.”

About a month prior to the Hively decision, the Eleventh Circuit held consistent with the majority view in Evans v. Georgia Regional Hospital that sexual orientation was not protected under Title VII. Until the Supreme Court takes on and resolves the conflict between the federal circuit courts, even employers within the Eleventh Circuit would be well-advised to adopt the conservative approach to this issue in the workplace is to treat sexual orientation as protected under Title VII.