Sexual Orientation Discrimination After Zarda

The question of whether sexual orientation is covered under Title VII has been brought up again in the U.S. District Court of Appeals for the Second Circuit. Recently, the court reversed and remanded a 2016 decision in the matter of Cargian v. Breitling USA. The case arose when Breitling employee Fredrick Cargian, who is gay, sued the watch manufacturer for allegedly terminating his employment because of his sexual orientation.

Cargian claims that after the company got a new president in 2010, the atmosphere became that of a “boys club” — from which Cargian was excluded. Cargian’s further claims that over the course of two years, the Breitling management team continuously changed the conditions of his employment, from sales goals to territories, which affected his overall sales numbers and performance. Eventually, Cargian says he was replaced by someone else and terminated in 2013. Carigan filed a lawsuit in 2015, claiming discrimination on the basis of sexual orientation under Title VII of the Civil Rights Act of 1964. In September of 2016, U.S. District Court Judge Daniels of the Southern District granted summary judgement in favor of Brietling, reasoning that sexual orientation was not a recognized protected class under Title VII.

Judge Daniels could not foresee the shift in sexual orientation discrimination law that occurred in February of 2018. In the matter of Zarda v. Altitude Express, Inc., the Second Circuit found that the scope of Title VII can be expanded to protect employees from discrimination on the basis of sexual orientation. The Court reasoned “prohibitions must go beyond the principal evil to cover reasonably comparable evils.” In other words, sexual orientation can be considered an actionable subset of sex discrimination because it is impossible for an employer to discriminate against an employee on the basis of their sexual orientation without taking sex into account. Based on the law’s language, if the adverse employment action is motivated by sex, based on the Court’s analysis, it is prohibited under Title VII.

Cases like Carigan’s against Breitling have major ramifications for the way Title VII is interpreted. The Second Circuit’s decision in Zarda overruled case law established by Simonton v. Runyon, 232 F. 3d 33, 35 (2d Cir. 2000) and Dawson v. Bumble v. Bumble, 398 F.3d 211, 217-23 (2d Cir. 2005) that reasoned “discrimination based upon sexual orientation is not currently actionable under Title VII.”  Federal Circuit courts are currently split on the issue and the Supreme Court has been asked to take up this issue and their ruling will have a major impact on employment protections under Title VII.

If you have been subjected to sexual discrimination in the workplace, such conduct may be unlawful. The New York City sexual harassment and discrimination attorneys at the Derek Smith Law Group, PLLC have years of experience litigating claims of sexual harassment and discrimination. With offices in New York, Miami, and Philadelphia, the Derek Smith Law Group has received millions of dollars on behalf of our clients who are the victims of discrimination. If you feel you have been subject to unlawful discrimination at work, please give our experienced attorneys a call, toll-free at 1-877-469-5297, for your free consultation.