Ever since President Johnson signed the Civil Rights Act of 1964 into law and outlawed employment discrimination under Title VII of the Act, courts have steadily increased employee protections. Under Title VII, employers cannot discriminate against employees based on their race, color, religion, sex or national origin. Since its passage, Title VII has been interpreted to prevent discrimination based on stereotypes and an employee’s association with people of another race. On February 26, 2018, the Second Circuit in Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) expanded Title VII’s protection to cover sexual orientation.
According to the Second Circuit, “sexual orientation discrimination is motivated, at least in part, by sex and is . . . a subset of sex discrimination.” The Zarda decision then stated “[s]exual orientation discrimination is also based on assumptions or stereotypes about how members of a particular gender should be, including to whom they should be attracted.” Zarda further found that sexual orientation discrimination is a form of associational discrimination because the dislike of a person’s relationships with members of a particular sex is the motivation for adverse employment actions. Sex causes this aversion, and therefore, is sexual discrimination.
While Zarda is the law in the Second Circuit, which covers the federal courts in New York, Connecticut, and Vermont, the Second Circuit, along with the Seventh Circuit, is an outlier. Other federal appeals courts, along with the Trump administration, believe Title VII does not cover sexual orientation. The United States Supreme Court will likely address this split in the near future.
Even though Zarda’s ruling has only just started impacting employment discrimination claims brought under Title VII, Connecticut’s workplace anti-discrimination law, the Connecticut Fair Employment Practices Act (“CFEPA”), already expressly provides protections against sexual orientation discrimination. If you have questions regarding an employment issue related to workplace discrimination in Connecticut, please contact one of the attorneys at Mitchell & Sheahan, P.C.