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The Evolution of Title VII and Sex Discrimination

It seems as though every few months we need to update our understanding of what discrimination “because of... sex” means under Title VII. Gay and lesbian employees continue to bring discrimination claims against employers, arguing that Title VII’s prohibition against discrimination “because of... sex” extends to sexual orientation discrimination. Well, it’s time for another update.

Last month, the Second Circuit Court of Appeals issued a ruling in Zarda v. Altitude Express, Inc., finding that sexual orientation discrimination is motivated, at least in part, by sex, and is thus a subset of prohibited sex discrimination under Title VII. In Zarda, the plaintiff, a skydiving instructor, claimed he was terminated due to his failure to conform to male sex stereotypes solely because he was gay. The plaintiff did not claim that he failed to conform to a masculine look or behavior. Rather, he claimed it was simply the fact that he was gay and referenced his sexual orientation to clients and coworkers that led to his termination.
The Zarda court recognized the long-standing rule that gender-based stereotyping can violate Title VII’s prohibition on discrimination “because of... sex.” For example, in Price Waterhouse v. Hopkins, a case decided in 1989, the U.S. Supreme Court found in favor of a female plaintiff who alleged that she was denied partnership, because she did not fit the male partners’ idea of what a female employee should look and act like. Male partners instructed her that she would have a better chance at promotion if she walked, talked, and dressed in a more feminine way, wore make-up and jewelry, and had her hair styled. The Supreme Court found that such gender stereotyping constituted discrimination because of... sex.
Some transgender employees have found relief under the body of law prohibiting discrimination based on gender stereotypes. But again, these plaintiffs have found success because they did not conform to gender stereotypes regarding the way women and men look, talk, and act. The legal holdings were not necessarily based solely on the plaintiff’s transgender status.  
But the Zarda court noted that, until recently, nearly all courts that have considered the question have held that claims based solely on sexual orientation discrimination are not cognizable under Title VII. The court went on to note that these judicial precedents are being eroded as time marches on.
The Zarda court referenced a 2015 decision by the EEOC on an administrative claim, Baldwin v. Foxx. In Baldwin, the EEOC recognized that discrimination because of... sexual orientation is sex discrimination. Then, in 2017, the Seventh Circuit Court of Appeals, which covers Illinois, Indiana, and Wisconsin, became the first circuit court of appeals to rule definitively that Title VII’s protections against discrimination “because of... sex” extends to protection from sexual orientation discrimination. See Hively v. Ivy Tech Community College. The Zarda court also pointed out that in 2017, the Eleventh Circuit Court of Appeals, which covers Alabama, Florida, and Georgia, declined to extend Title VII to sexual orientation discrimination.
With this recent history in mind, the Second Circuit had to decide which side of the line it would land on. The court dove into the meaning of “sexual orientation,” noting that one cannot consider a person’s sexual orientation without considering that person’s sex. The court reasoned that sexual orientation is a function of sex; or rather, it is a function of both the person’s sex and the sex of the person to whom he or she is attracted. Therefore, “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.”
So where do things stand? Two circuit courts of appeal have ruled that sexual orientation discrimination is prohibited under Title VII, and one circuit court has held the opposite. That circuit split may very well lead to the Supreme Court taking up the issue in the very near future to settle the matter once and for all.

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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
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Jason Lacey, the Employee Benefits Guy
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