The 2nd Circuit, covering Connecticut, New York, and Vermont, has revived a sex bias claim brought on behalf of Donald Zarda, a deceased skydiving instructor who was allegedly fired for telling a client he was gay. As an instructor at Altitude Express, Zarda sometimes mentioned his orientation in order to help female clients feel more comfortable when jumping, as they would be tied physically close to him during jumps. Zarda was fired after a boyfriend of one female client complained to Zarda’s boss that Zarda had inappropriately touched his girlfriend and mentioned he was gay. Zarda denied anything inappropriate and alleged that his dismissal was entirely because he said he was gay.

Zarda’s estate tried to get a trial court to reinstate the sex bias claim after the EEOC held that the prohibition against gender discrimination in Title VII of the Civil Rights Act of 1964 extended to sexual orientation. The question of whether Title VII encompasses sexual orientation discrimination has led to inconsistent results, with the 7th Circuit ruling that the statute does in fact prohibit orientation bias and an 11th Circuit panel deciding that it does not. Now the 2nd Circuit has aligned itself with the 7th Circuit and the EEOC.

The 7th Circuit held that “Title VII’s prohibition on sex discrimination applies to any practice in which sex is a motivating factor,” and that “[s]{:target=”blank”}exual orientation discrimination is a subset of sex discrimination 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.”

The court explained that the reach of law has expanded, and this ruling reflects that evolution. The court concluded that stereotypes around sex are the foundation of discrimination on the basis of sexual orientation, and their shared roots mean they warrant shared Title VII protection. The court viewed sexual orientation as being protected through “the lens of associational discrimination,” the same principle that protects an employee who marries someone of a different race.

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