In recent years, a Circuit Court split has emerged regarding whether Title VII prohibits discrimination based solely on sexual orientation.  On February 26, 2018, the Justices of the Second Circuit Court of Appeals heard an appeal seeking reinstatement of a Title VII claim brought by the estate of a former employee, Donald Zarda (“Mr. Zarda”).  The estate alleged that Mr. Zarda was fired from his job as a skydiving instructor after he told a customer he was gay.  Zarda v. Altitude Express addressed a narrow question: whether Title VII prohibits discrimination on the basis of sexual orientation.  The Second Circuit overturned its earlier precedent and held that Title VII does prohibit discrimination on the basis of sexual orientation.

In Hively v. Ivy Tech Cmty. Coll., the Seventh Circuit similarly held that sexual orientation discrimination is prohibited under Title VII.  In contrast, the Eleventh Circuit (which includes Alabama, Florida, and Georgia) held in Evans v. Georgia Reg’l Hosp. that Title VII does not prohibit sexual orientation discrimination.  Not only are the Circuit courts split on this issue, but the federal government is also divided.  In Zarda, the EEOC and the Department of Justice offered opposing arguments.

The legal issue turns on the question of whether Title VII’s prohibition of discrimination the basis of “sex” includes sexual orientation.  The Second Circuit concluded that it does 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.”  In contrast, the Eleventh Circuit reasoned that although discrimination on the basis of sex stereotyping is impermissible, a plaintiff must present enough evidence to show that they were discriminated against based on a sex stereotype.  In other words, although a plaintiff may be a lesbian, if she does not present sufficient evidence to show that she was discriminated on the basis of sex stereotyping, she cannot state a claim under Title VII.  A separate cause of action does not exist solely for sexual orientation.

This area of the law continues to rapidly evolve across the country.  Employers should carefully monitor the law in their Circuit to ensure they are fully complying with any changes.  For employers who operate in multiple states that may encompass different Circuits, this requires extra vigilance.  In addition to ambiguity in federal law, many states and local governments have enacted their own laws prohibiting sexual orientation discrimination, and employers must comply with those laws as well.  At a minimum, employers should investigate any complaints of discrimination on the basis of sexual orientation, gender identity, and gender expression and respond appropriately.