On Monday, February 27, 2018, in Zarda v. Altitude Express, the Second Circuit Court of Appeals ruled that discrimination on the basis of sexual orientation is against federal law as unlawful discrimination, subsumed under discrimination on the basis of sex, as defined by the Civil Rights Act of 1964. The Second Circuit, which covers New York, Connecticut, and Vermont, joins the Sixth Circuit in holding that gay employees may not be discriminated against on the basis of sexual orientation.

This case arises out of a claim of unlawful termination – Zarda claimed he was fired because he was gay. This en banc decision overruled a previous Second Circuit decision which held that, while sexual orientation discrimination should be outlawed as a policy matter, the plain reading of the statute did not encompass sexual orientation. Here, however, the Court determined (in part) that the associational claim. (i.e. that Zarda was fired because his boyfriend was gay) was enough to determine that Zarda was fired because of his sex.  In other words, if Zarda’s significant other were of the opposite gender, he would not have been fired.

This 10-3 decision is noteworthy, in part, as two different government agencies appeared on opposite sides of the case. The Equal Employment Opportunity Commission (EEOC) supported Zarda and argued that the Civil Rights Act of 1964 outlawed discrimination on the basis of sexual orientation whereas the Department of Justice, in a reversal of the Obama Administration’s position, argued that sexual orientation discrimination was not covered under the aegis of the Civil Rights Act of 1964. This is the third circuit court to rule on this question in the last 12 months – and the results have causes a circuit split, which raises the specter of a possible Supreme Court showdown.

Thanks to Matt Care for his contribution to this post and please write to Mike Bono with any questions.