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Second Circuit won’t overturn precedent: Title VII doesn’t prohibit sexual orientation discrimination

By Kathleen Kapusta, J.D.

Refusing to reconsider its interpretation of Title VII in order to hold that its prohibition on discrimination based on “sex” encompasses discrimination based on “sexual orientation,” the Second Circuit explained that a three-judge panel lacks the power to overturn Circuit precedent. The appeals court also rejected the argument that the employee was entitled to a new trial on his state-law sexual orientation claim because of alleged evidentiary errors, unfair discovery practices, and prejudicial arguments to the jury based on gay stereotypes (Zarda v. Altitude Express dba Skydive Long Island, April 18, 2017, per curiam).

When a woman went skydiving with her boyfriend at Altitude Express, they purchased tandem skydives where the instructor is tied to the back of the client so he can deploy the parachute and supervisor the jump. The employee, who was the woman’s instructor, informed her of his sexual orientation and that he had recently experienced a break up. When her boyfriend found out, he complained to Altitude Express. The employee was fired shortly thereafter, purportedly because he failed to provide an enjoyable experience for a customer.

Lower court proceedings. Alleging that he was actually fired because of his sexuality, he sued Altitude Express asserting sexual orientation discrimination in violation of state law and sex discrimination in violation of Title VII. The district court, relying on the Second Circuit’s decision in Simonton v. Runyon, declined to hold that discrimination based on sexual orientation constitutes sex based on sex for Title VII purposes.

The employee had based his Title VII claim on the ground that he had been terminated for failing to conform to sex stereotypes. Specifically he alleged that his employer criticized him for wearing pink at work and painting his toenails pink, notwithstanding his “typically masculine demeanor.” The district court granted summary judgment to the employer without analyzing whether he could rely on a “sex stereotype” that men should date women. Instead, it limited its analysis to the sex stereotypes alleged by the employee, including “what you may wear or how you may behave.” The court found that he failed to establish the requisite proximity between his termination and his proffered instances of gender nonconformity. Although the state-law claim went to trial, a jury found for the employer.

Causation standard. On appeal, the employee argued that Simonton’s holding that “Title VII does not proscribe discrimination because of sexual orientation” is incorrect and should be overturned. Addressing as a threshold matter the employer’s argument that the scope of Title VII’s protections are irrelevant to the employee’s appeal because the jury determined that it had not discriminated, the Second Circuit found his sex discrimination claim was properly before it because the district court held him to a higher standard of causation than required by Title VII.

Under Title VII, the court observed, a plaintiff must demonstrate that sex “was a ‘substantial’ or ‘motivating’ factor contributing to the employer’s decision to take the [adverse employment] action.” At trial, the court instructed the jury that the employee could prevail on his state-law sexual-orientation discrimination claim only if he could prove that “he would have continued to work for Altitude Express . . . except for the fact that he was gay,” a higher standard of causation than necessary for Title VII claims. Here, the court pointed out that if the employee was correct that discrimination based on sexual orientation is equivalent to prohibited sex discrimination under Title VII, then he would have been entitled to a jury instruction on the less stringent “motivating-factor” test for causation. It is entirely possible, said the court, that a jury thought his sexual orientation was “one of the employer’s motives” (i.e. a “motivating factor”) in its termination decision, but was not a “but-for cause” of his firing. “In sum,” the court explained “if Title VII protects against sexual-orientation discrimination, then [the employee] would be entitled to a new trial.”

Finding his request that it overturn Simonton not mooted by the jury verdict on his state-law claim, the court nonetheless declined his invitation to revisit its precedent, pointing out that a separate panel in Christiansen v. Omnicom Grp., recently held that Simonton can only be overturned by the entire Court sitting in banc. The court also pointed to the Seventh Circuit’s recent decision in Hively v. Ivy Tech Community College of Indiana, in which the court, sitting en banc, overturned prior Seventh Circuit precedent holding that Title VII did not prohibit discrimination based on sexual orientation.

Further, said the court, in Christiansen, the panel remanded to the district court after concluding that the plaintiff had stated a plausible claim of “gender stereotyping,” which is actionable under Title VII. That route, however, was unavailable to the employee here since the district court found he failed to establish the requisite proximity between his termination and his failure to conform to gender stereotypes and he did not challenge that determination on appeal. Consequently, he could receive a new trial only if Title VII’s prohibition on sex discrimination encompasses discrimination based on sexual orientation—a result foreclosed by Simonton.