It has been some three years since the U.S. Supreme Court’s landmark decision in Obergefell v. Hodges held that the right to marry, regardless of sexual orientation, was guaranteed by the both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the Constitution. Despite this ruling, the laws protecting against discrimination based upon sexual orientation have until very recently lagged behind.

While New York State and New York City have had laws on the books protecting against such discrimination for quite some time, it was not until February 26, 2018 that the U.S. Court of Appeals for the Second Circuit (covering New York, Connecticut and Vermont) found discrimination based upon sexual orientation to be a form of sex discrimination, and thus covered by Title VII of the Civil Rights Act (Title VII). That same month, the New York City Council passed a new law that greatly broadens the definition of “sexual orientation” under the New York City Human Rights Law (NYCHRL).

The following is an overview of these developments, together with our recommendations for avoiding discrimination claims based upon sexual orientation.


The Second Circuit’s Decision in Zarida v. Altitude Express

Most federal courts are of the opinion that Title VII’s protections against unlawful discrimination do not apply to sexual orientation, and that was the view of the Second Circuit prior to its recent decision in Zarida v. Altitude Express. The Zarida case involved a gay skydiving instructor who was the frequent target of jokes about his sexual orientation by his co-workers.

Zarida was quite open about his sexuality, and oftentimes told female customers (concerned about being strapped face-to-face with an unfamiliar man during skydiving lessons) that they shouldn’t be concerned about the close contact with him because he was gay. Nevertheless, a female customer complained that she had been touched inappropriately during a skydive and claimed Zarida told her he was gay to cover up. The company promptly fired him.

Zarida brought suit in U.S. District Court under Title VII and New York’s human rights law, alleging among other things that he had been fired because he failed to conform to male sex stereotypes (i.e. he acted gay). Relying upon prior holdings that such claims may not be maintained under Title VII, the District Court dismissed the federal claims, and allowed the state claims to proceed to trial, where defendants prevailed.

Zarida appealed to the Second Circuit, arguing that the case law the District Court had relied upon had been incorrectly decided. The judgment was affirmed by a panel of appellate judges, who noted that the appellate court could not overturn its own precedent unless all 13 of the Second Circuit judges convened “en banc” and decided the precedent was incorrect.

To make a long story short, the Court did eventually come to question its precedent, and ordered a rehearing to revisit its prior holdings that claims of sexual orientation discrimination could not be maintained under Title VII. In a lengthy decision, 10 of the 13 judges concluded that Title VII indeed covered claims for sexual orientation discrimination. The majority found (a) that sexual orientation is a form of sex discrimination as sexual orientation is a function of a person’s sex, and (b) that sexual orientation discrimination flows from an employers’ disapproval of relationships between persons of the same sex.

As is discussed below there are state and local laws that protect against sexual orientation discrimination. In the wake of the Zarida case, employees who experience discrimination may now also bring their claims in federal court, where cases tend to move faster than in state court.


Recent Changes to the New York City Human Rights Law

The New York City Council has also been busy amending the New York City Human Rights Law (which is similar to the New York State Human Rights Law but far more potent and liberal). The recent amendments, which went into effect on May 10, 2018, include an expansion of the definitions of “sexual orientation” and “gender.”

Specifically, “sexual orientation” is currently defined as heterosexuality, homosexuality, and bisexuality. As of May 10th, the definition encompasses “an individual’s actual or perceived romantic, physical or sexual attraction to other persons, or lack thereof, on the basis of gender.” According to this new law, there is a “continuum of sexual orientation” that “includes, but is not limited to, heterosexuality, homosexuality, or bisexuality, asexuality, and pansexuality.” The definition of “gender” has also been amended to include “actual or perceived sex, gender identity, and gender expression, including a person’s actual or perceived gender-related self-image, appearance, behavior, expression, or other gender-related characteristic, regardless of the sex assigned to that person at birth.”

Confused? If so, it’s not surprising. These exceptionally broad definitions mean that pretty much anyone can assert a claim that they have been discriminated against due to their sexual orientation and/or gender. Combined with the fact that New York based employers must now contend with potential sexual orientation claims under Title VII, now more than ever employers interested in protecting against lawsuits based upon sexual orientation and/or gender discrimination should take note of these developments, and make sure they have solid policies and procedures in place to protect their employees from discrimination of this sort.

Article by Lawrence I. Cohen

Laurence I. Cohen is a partner with Pike, Tuch & Cohen, LLP, a Bellmore, NY-based law firm.

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