Recently, in Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018), the Second Circuit Court of Appeals held that Title VII protections extend to persons claiming sexual orientation discrimination. The Court reasoned that discrimination against a person for their sexual orientation constitutes sexual discrimination under Title VII’s broad scope of workplace equality. Though Title VII did not specifically identify sexual orientation discrimination as a cause of action against employers, it was drafted to identify discrimination in which sex was a motivating factor.
In Zarda, Plaintiff was terminated from his job as a skydiving instructor when a client claimed that he inappropriately touched her during a tandem skydive. Plaintiff denied any inappropriate touching, and argued that his firing was spurred by his vocalization of his sexual orientation to the client prior to the jump. He believed that he was discriminated against because he “honestly referred to [his] sexual orientation and did not conform to the straight male macho stereotype.”Id. at 109. Therefore, the question before the Court was whether Title VII afforded protections against discrimination based upon sexual orientation.
The Court reviewed prior case law, finding that Title VII was drafted to prevent discrimination “because of … sex,” and its definitions were purposefully broad. It held that Congress intended to protect against all forms of sexual discrimination and drafted Title VII to be malleable to the ever-changing landscape of sexual identity. Congress intended to protect against the evil of a hostile work environment, and drafted the statute in accordance with the types of discrimination prevalent at its inception. Effectively, the failure to specifically include “sexual orientation discrimination” within the confines of Title VII does not limit the extension of its protections, as the statute remains subject to judicial review and interpretation.
Although decisions of the Second Circuit are not binding in Michigan federal courts, which are part of the Sixth Circuit, this case denotes a change in the view of the efficacy of sexual orientation discrimination claims. Shortly after Zarda, the Sixth Circuit Court of Appeals issued its own significant Title VII decision in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., holding that a funeral home’s discharge of a transitioning transgender employee also violated Title VII.
This article was written by Nezar Habhab, Law Clerk.
