The Second Circuit Court of Appeals recently issued an opinion in Zarda v. Altitude Express and held that Title VII provides protection from discrimination and harassment because of an individual’s sexual orientation. The Second Circuit covers the following states: Connecticut, New York and Vermont. The Second Circuit now agrees with the Seventh Circuit Court of Appeals on this issue as reflected in its opinion in Hively v. Ivey Tech Community College. We previously wrote about the Hively v. Ivey Tech Community College opinion. The Seventh Circuit covers Illinois, Indiana and Wisconsin.

These opinions issued by the Second Circuit and the Seventh Circuit are in direct conflict with the Eleventh Circuit Court of Appeals’ opinion in Evans v. Georgia Regional Hospital. In Evans v. Georgia Regional Hospital, the Eleventh Circuit (covering Georgia, Alabama and Florida) upheld a U.S. District Court’s dismissal of Evans’ complaint on the grounds that Title VII does not cover sexual orientation discrimination. A petition was filed for the U.S. Supreme Court to hear this case, but it was declined. We previously wrote about the Evans v. Georgia Regional Hospital opinion.

In Zarda v. Altitude Express, the plaintiff was a skydiving instructor, who regularly performed tandem skydives, during which he would be strapped hip to hip and shoulder to shoulder with his clients. Plaintiff regularly informed his female customers that he was gay with hopes it would alleviate any concerns they may have before a tandem dive. Allegedly as a result of one disclosure, plaintiff’s employer fired him. Plaintiff then filed a lawsuit alleging sex discrimination under Title VII on the grounds that he was discharged based on impermissible sex stereotyping. Plaintiff contended that his fellow male skydiving instructors routinely joked about the fact that they were strapped to women in tandem dives. Plaintiff further alleged that he was terminated because he was open about the fact that he was gay and did not fit the “straight male macho stereotype.” The trial court dismissed the case based on earlier case law in the Second Circuit which held that sexual orientation discrimination and harassment was not protected by Title VII. On appeal, a three judge panel affirmed the dismissal on the grounds that it was required to follow the court’s precedent that Title VII does not cover sexual orientation. Plaintiff then sought an en banc review before all of the judges on the Second Circuit, which was granted. By a 10 to 3 majority, the court reversed the dismissal of plaintiff’s claim and held that sexual orientation is a protected characteristic under Title VII. As this opinion has just been issued, we are unaware whether the employer will seek a review by the U.S. Supreme Court.

While the Zarda and Ivey Tech opinions are only controlling in certain states, employers in the other states still need to pay close attention to these decisions. The Fourth Circuit Court of Appeals, in which North Carolina is located, has not issued an opinion as to this issue.

As these cases develop further, including a possible review by the U.S. Supreme Court, we will issue additional employer alerts. In the interim, employers should consult with counsel to discuss modification of employment policies to include sexual orientation as a protected characteristic. In addition to modification of policies, employers should schedule training of their managers in regard to discrimination and harassment based on sexual orientation.

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