Is sexual orientation protected by federal anti-discrimination laws?

March 16, 2018

Is discriminating against an employee due to sexual orientation similar to discriminating against an employee due to gender?

The answer to that question will resolve whether discrimination based on sexual orientation is protected by federal discrimination law.

The 2nd U.S. Circuit Court of Appeals last month split with the 11th Circuit, and sided with the 7th Circuit, concluding that discrimination based on sexual orientation is sex discrimination protected by Title VII of the Civil Rights Act. The case, Zarda v. Altitude Express, went through lengthy litigation until the entire slate of 13 Circuit Court judges heard the appeal.

Zarda was a skydiving instructor who claimed he was terminated after revealing his sexual orientation to a client. He regularly took part in tandem skydives where he was strapped hip-to-hip and shoulder-to-shoulder with clients.

The case revealed that in an environment where close physical proximity was common, Zarda’s co-workers routinely referenced sexual orientation or made sexual jokes around clients. Zarda said he sometimes told female clients he was gay to assuage concerns they might have about being strapped to a man for the jump.

One of Zarda’s female clients claimed that, when preparing for a tandem skydive, he told the client he was gay, adding that he had “an ex-husband to prove it.” The client believed that Zarda inappropriately touched her and then disclosed his sexual orientation to excuse his behavior.

After the jump, the client told her boyfriend about the interaction, who told Zarda’s boss. Zarda was fired shortly thereafter. Zarda admitted to referencing his sexual orientation but denied touching the client inappropriately. Zarda said he was terminated for failing to conform to male sex stereotypes by referring to his sexual orientation.

In reversing prior court decisions, the court noted that “legal doctrine evolves” and when Congress originally passed the law it intended to make sex “irrelevant” in employment decisions.

The court engaged in lengthy discussion about the comparison of discrimination based on sexual orientation to racial discrimination wherein an employee is discriminated against due to association/relationship with a member of the opposite race.

The court concluded that, if true, the employer’s action would constitute discrimination based on race, noting “where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.”

Of note in Zarda’s case, one of his claims he made to the Equal Employment Opportunity Commission was that “all of the men at (his workplace) made light of the intimate nature of being strapped to a member of the opposite sex,” but that he was fired because he “honestly referred to (his) sexual orientation and did not conform to the straight male macho stereotype.”

A lesson for employers is first and foremost, don’t wait for the law to be resolved by the U.S. Supreme Court before implementing policies and practices, prohibiting discrimination based on sexual orientation and/or gender identity. It’s just good business to treat people with dignity and respect.

Second, this entire case could have been avoided had the employer eliminated the inappropriate sexual innuendo and references to sex, as Zarda claimed was occurring.

If the employer creates an atmosphere where these discussions are off-limits, then Zarda’s reference to sexual orientation would have violated company policy. But where the employer permits such misconduct to occur, by extension conversations about sexual orientation are just consistent with an inappropriately sexually charged environment.

Finally, employers need to understand the real impact that their actions have on real people. A friend, who is now married to his male partner, shared his experience several years ago when he was told that his participation in a gay pride parade, after work, did not align with the company’s values. Participation in events that promote equality should not be a stain on workplace relationships.