A gay couple married. The next day when they reported to work they were fired because they were gay. They had a constitutional right to get married but no protection from employment discrimination based on their sexual preference. Sounds widely contradictory and fundamentally unfair but that is the current status of federal law except in the 2nd Circuit thanks to a recent landmark opinion by the 2nd Circuit in Zarda v. Altitude Express,that held Title VII prohibits sex discrimination based on sexual orientation.
The United States Supreme Court has not addressed whether Title VII prohibits sex discrimination based on sexual orientation making this one of the big unanswered legal questions. To understand the import of this case see an excellent discussion related to an earlier case with similar issues that got sidetracked before it could be appealed to the Supreme Court in Constitution Daily by Lyle Denniston. The opinion by the Second Circuit in Altitude Express could set the stage for review by the United States Supreme Court on whether or not the Title VII prohibits discrimination based on sexual orientation because the opinion creates a split in the Circuit Courts making it more likely that the United States Supreme Court will step in and answer this important question.
Missouri courts have also struggled with whether or not the Missouri Human Rights Act (MHRA) prohibits discrimination based on sexual orientation. So far the Missouri Supreme Court has not addressed whether or not the MHRA prohibits sex discrimination based on sexual orientation although a recent case decided by the Western District in Lampley v. Missouri Commission On Human Rights, held that sex stereotyping was gender discrimination. My December 5, 2017, Post on the Lampley case provides an update on the current status of sex discrimination cases in Missouri.
The facts in Altitude Express, are straightforward. Donald Zarda, a gay man, worked as a skydiving instructor at Altitude Express. As part of his job, he regularly participated in tandem skydives, strapped hip-to-hip and shoulder-to-shoulder with clients. Zarda told a female client with whom he was preparing for a tandem skydive that he was gay and he had an ex-husband to prove it. Zara was fired because of his comment. 
Zarda filed a complaint with the EEOC, which was eventually appealed to the Second Circuit.
In determining whether or not Title VII prohibits sexual orientation discrimination, the 2nd Circuit was guided by the text and, in particular, by the phrase “because of ․ sex.” In interpreting this phrase, the court construed the text in light of the entirety of the statute and relevant precedent.
Title VII, provides that an employer has engaged in “impermissible consideration of sex in employment practices” when “sex was a motivating factor for any employment practice,” irrespective of whether the employer was also motivated by “other factors.” Therefore the 2nd Circuit concluded that , if the action was “because of sex” it was “a motivating factor” and the employer had violated the Act. The 2nd Circuit further concluded that Congress intended to make sex “irrelevant” to employment decisions and that if the if sexual orientation discrimination is motivated, at least in part, by sex it is sex discrimination.
Furthermore, “… the most natural reading of the statute’s prohibition on discrimination… ” is that if it is “because of sex” it extends “…to sexual orientation discrimination because sex is necessarily a factor in sexual orientation.”
Local governmental officials need to be aware that the law in this area is currently in a state of flux at both the federal and state level; therefore, if presented with similar issues extra care needs to be taken until there is a resolution of whether or not an employment decision based on sexual orientation constitutes employment discrimination. For a more detailed examination of Zarda v. Altitude Express, see my comments in the March 2018 edition of the MMAA Newsletter.
Howard Wright © 2018
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