Is sexual orientation discrimination illegal? New court ruling on divisive issue

Whether or not sexual orientation discrimination is prohibited by Title VII of the Civil Rights Act has been hotly debated by several courts in recent months.
And the Supreme Court declining to rule on the issue last year only complicated the matter, since many had looked to it for guidance.
But a brand new ruling on yet another sexual orientation discrimination case could end up bringing the issue right back to the Supreme Court.

Second Circuit ruling

In Zarda v. Altitude Express, a gay skydiving instructor was terminated after he revealed his sexual orientation to several female clients. Zarda did this in an effort to make them more comfortable with being strapped to him in a tandem skydive, but this had the opposite effect on a male client who learned that Zarda was gay. This caused the company to fire him.
The Second Circuit decided that this was considered sex discrimination under Title VII, since the company didn’t fire female instructors for potentially being attracted to male clients. The fact that Zarda was male and gay went hand in hand with his termination.
The court further said that sexual orientation is “predicated on assumptions about how persons of a certain sex can or should be.” The company had expected Zarda to act a certain way because he was male, and then fired him when he didn’t. Sex stereotyping is prohibited under Title VII, and it is an impermissible basis for adverse employment actions, the court added.

Bigger picture

This ruling only further divides courts on the issue. Previously, the Eleventh Circuit ruled that sexual orientation discrimination isn’t considered sex discrimination, and therefore not protected under Title VII.
But last year, the Seventh Circuit became the first federal appeals court to recognize that “discrimination on the basis of sexual orientation is a form of sex discrimination.”
Though the Supreme Court previously declined to weigh in, that may change if courts continue to have different opinions on the matter.
In the meantime, it’s important to note there are already several state and local laws protecting employees from sexual orientation discrimination.

Rachel Mucha
Rachel writes about Human Resource management and has been a member of the HRMorning staff since 2017. She is a graduate of Ithaca College. Email: