The Yale Law Journal

En Banc Second Circuit Cites Volumes 127 & 124

Tracy Nelson
31 Mar 2018

In Zarda v. Altitude Express, Inc., 883 F.3d 100 (2018), the Second Circuit joined the Seventh Circuit in holding, en banc, that sexual-orientation discrimination constitutes discrimination “because of . . . sex,” and is therefore prohibited in the employment context under Title VII. Plaintiff, the late Donald Zarda, alleged that he was terminated from his job at Altitude Express for failing to comply with gender stereotypes by openly discussing his sexual orientation with a customer. In Chief Judge Katzmann’s majority opinion, the Court found that sexual orientation is a function of sex and therefore that Title VII’s protections against sex discrimination extend to sexual orientation discrimination.

The Court first cited William N. Eskridge, Jr., Title VII's Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections, 127 Yale L.J. 322, 349 (2017). Professor Eskridge’s piece examines the relevant legislative history to conclude that Title VII should be interpreted to protect from employment discrimination on account of sexual orientation. The Court found that the prohibition on associational discrimination found in the context of race “applies with equal force to all the classes protected by Title VII, including sex,” 883 F.3d at 125, and cited Professor Eskridge’s piece to assert that Title VII’s legislative history equates sex and race discrimination and therefore supports the Court’s conclusion.

Chief Judge Katzmann’s opinion also cited Zachary R. Herz’s note, Price’s Progress: Sex Stereotyping and Its Potential for Antidiscrimination Law, 124 Yale L.J. 396 (2014), to distinguish between ascriptive and prescriptive stereotypes. Herz’s Note discusses the extension of Title VII protections to prescriptive stereotyping, in which one’s actual individual characteristics are compared to a flawed norm. It then highlights the potential implications of this extension for claims alleging LGBT discrimination. The Court cited the note to support the assertion that Title VII protects against all forms of disparate treatment resulting from sex stereotyping.