As a result of a recent court decision, the Second Circuit has now joined the Seventh Circuit (see Sex Discrimination, at least according to the Seventh Circuit, Benefit Beat, 5/8/17) in affirming that sexual orientation discrimination is a violation of Title VII of the Civil Rights Act,

In the matter of Zarda v. Altitude Express (No. 15-3775, 2d Cir. 2017), the plaintiff, Donald Zarda, had been fired after he revealed his sexual orientation to a client.  He then brought suit against his employer, Altitude Express, alleging Title VII sex discrimination.  Title VII’s prohibition on sex discrimination applies to any practice in which sex is a motivating factor.  In its review of the matter, the Court concluded that:

“…sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account. Sexual orientation discrimination is also based on assumptions or stereotypes about how members of a particular gender should be, including to whom they should be attracted.  Finally, sexual orientation discrimination is associational discrimination because an adverse employment action that is motivated by the employer’s opposition to association between members of particular sexes discriminates against an employee on the basis of sex.  Each of these three perspectives is sufficient to support this Court’s conclusion and together they amply demonstrate that sexual orientation discrimination is a form of sex discrimination”.

While the Second Circuit (which has appellate jurisdiction in Connecticut, New York, and Vermont) and Seventh Circuit (which has appellate jurisdiction in Illinois, Indiana and Wisconsin) concur on the matter, the Eleventh Circuit (which has appellate jurisdiction in Alabama, Florida and Georgia) does not.  Because there continues to be a split among the Circuit Courts, the issue may be ripe for review by the Supreme Court. 

In the meantime, remember that Title VII impacts all matters of employment, including the provision of employee benefits. Thus, plan sponsors should exercise caution with regard to any plan provisions that could be deemed to discriminate based on sexual orientation.  It is prudent to consult with legal counsel with any questions.