Search This Blog

Friday, March 2, 2018

Split in the Federal Circuits on Sexual Orientation Bias

Donald Zarda worked for Altitude Express as a skydiving instructor. Following one jump, a customer complained that Zarda had disclosed his homosexuality and other personal details during the jump. Zarda was fired soon thereafter. He sued Altitude Express claiming sex discrimination under Title VII, gender and sexual orientation discrimination under New York state law, and violation of state and federal wage and hour laws. Zarda is deceased but his lawsuit lives on through the two executors of his estate who have replaced him as plaintiff. At trial on his state law discrimination claim, the jury found that Zarda had not proved that his sexual orientation was a determining factor in his termination.

On appeal, Zarda claimed that Title VII protects against sexual-orientation discrimination and that part of his case should not have been dismissed. The U.S. Court of Appeals for the Second Circuit recently signaled in the fall that it might overrule its precedent holding that Title VII’s ban on sex discrimination does not include sexual orientation discrimination.

On February 26, the 2nd Circuit Court of Appeals ruled as follows: “We convened this rehearing en banc to consider whether Title VII prohibits discrimination on the basis of sexual orientation such that our precedents to the contrary should be overruled. We now hold that sexual orientation discrimination constitutes a form of discrimination ‘because of . . . sex,’ in violation of Title VII, and overturn its prior 2005 decision to the contrary. With this decision, the Second and Seventh Circuits have held that Sexual Orientation discrimination is prohibited by Title VII.  The Eleventh Circuit and 11th Circuit Justice Bill Pryor in Evans v. Georgia Regional Hospital says No, it isn't. Next stop the U.S. Supreme Court to resolve a split in the Circuits.

Common Sense Counsel: while the battle lines are drawn between Trump v Obama policy agendas, there is still no substitute for training your supervisors in effective and defensible termination and harassment prohibitions in all forms - to include gender identification and sexual orientation. Also, the new claim of “failing to conform to gender stereotypes” appears to be gaining traction in the 11th Circuit Court of Appeals.

Specifically, train your supervisors not to use loose words like “attitude” or “company culture” or “sexuality” or similar phrases that lack defined meaning in employment law, as the courts may assign meaning you do not like. Train all employees that it is about respect in the workplace and being able to work with others in a civil and cooperative manner are essential job functions. In fact, make respectful behavior and diversity and inclusion part of your statement of values. Update your harassment prevention/professional conduct policy, investigative notebook and harassment prevention training to include all forms of disrespectful conduct and protected status individuals. 

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and can be contacted at or 334-246-2901. Blog at