Case Note By: Lisa Russell
2018 PEPP. L. REV. 125 (2019)
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against an employee on the basis of race, color, religion, national origin, or sex. But does this include protection against discrimination based on sexual orientation? Circuits are currently split as to whether Title VII covers the scope of sexual orientation discrimination. In 2018, the Second Circuit overturned its own precedent and joined the Seventh Circuit in holding that “sex” under Title VII encompasses “sexual orientation” in the groundbreaking decision of Zarda v. Altitude Express, Inc. By considering the historical background of Title VII and the progression of what constitutes “sex discrimination” in relation to the facts underlying Zarda, this note examines the Second Circuit’s holding and asserts that the court reached the correct decision. In coming to its decision, the Second Circuit made an impact on the weight of authority protecting an employee from sexual orientation discrimination under Title VII, which will certainly play an important role moving forward as the Supreme Court has granted certiorari on this contested issue.