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Broadening the Scope of LGBT Rights Under Title VII: A Practitioner’s Guide to Zarda v. Altitude Express

By John R. Richards & Brett A. Janich on March 5, 2018
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On Feb. 26, 2018, the U.S. Court of Appeals for the Second Circuit handed down an en banc ruling in the case of Zarda v. Altitude Express, holding in a 10-3 decision that Title VII prohibits discrimination on the basis of sexual orientation.  Addressing a case in which a sky diving instructor was allegedly terminated for being gay, the Court employed three separate theories to reach the conclusion that sexual orientation discrimination constitutes a form of sex discrimination (which, of course, is explicitly banned by Title VII):

  • The “Because of Sex” Theory: This theory takes a literal, textualist approach to interpreting Title VII, concluding that the statute’s plain language—which prohibits discrimination “because of . . . sex”—is inclusive of sexual orientation discrimination. In particular, the Second Circuit examined Title VII’s language from a “comparative” posture, reasoning that if an employer would not discriminate against a female employee who dated males (e., a heterosexual employee), but would discriminate against a male employee who dated males (i.e., a homosexual employee), then such discrimination is “because of . . . sex” and is duly outlawed by Title VII.

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  • Posted in:
    Employment & Labor
  • Organization:
    Greenberg Traurig, LLP

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