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‘Woke dicta’? Title VII covers sexual orientation discrimination

Kendall Hoechst, Amy McLaughlin, Editors
Dinse, Knapp & McAndrew, P.C., Burlington


by Kendall Hoechst

Vermont employers should know that the Vermont Fair Employment Practices Act (FEPA) explicitly prohibits discrimination based on not only employees’ sex but also their gender identity and sexual orientation (as well as other protected categories). Thus, on its face, Vermont law is broader than its federal equivalent, Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination on the basis of sex but doesn’t include the separate characteristics of sexual orientation or gender identity.

Previously, the U.S. 2nd Circuit Court of Appeals (whose rulings apply to all Vermont employers) held that sexual orientation discrimination claims, including claims that being gay or lesbian constituted nonconformity with a gender stereotype, weren’t covered under Title VII. The 2nd Circuit revisited its previous decisions in a rare en banc sitting—meaning with all the members of the court rather than a three-judge panel—in Zarda v. Altitude Express, Inc. The majority held that Title VII prohibits discrimination based on sexual orientation as discrimination “because of . . . sex.”


Donald Zarda, a gay man, was employed as a skydiving instructor at Altitude Express. He frequently participated in tandem dives with Altitude Express clients, which involved being strapped hip to hip and shoulder to shoulder before jumping out of the airplane. Zarda told a female client that he was gay to preempt discomfort with being strapped closely to a man. However, the client claimed that he touched her inappropriately and disclosed his sexual orientation to excuse his behavior. He denied inappropriately touching her. After the jump, the client told her boyfriend her allegation of inappropriate touching. The boyfriend told Zarda’s boss, who fired him.

Zarda sued his employer under both New York law and Title VII, claiming that he was fired because he referred to his sexual orientation and because he didn’t conform to the “straight male macho stereotype.”

The trial court held that Zarda’s Title VII claims were barred under the 2nd Circuit’s previous precedent and ruled in favor of the employer on the federal claim. After a trial on the state-law claim, which required a different standard of proof than the federal claim, the jury returned a verdict in favor of the employer. Zarda appealed to the 2nd Circuit.
Interestingly, the Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) took opposing views in amicus briefs submitted to the court—i.e., arguments intended to influence the court’s decision written by parties that are not directly involved in the case but have an interest in the outcome. The DOJ argued that Title VII doesn’t prohibit sexual orientation discrimination. The EEOC claimed to be the “primary agency” charged with interpreting Title VII and argued the opposite.

The majority opinion had three primary holdings. First, the court held that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination. The majority concluded that firing a man because he is attracted to men or a woman because she is attracted to women is a decision motived, at least in part, by sex.
Second, the court held that sexual orientation discrimination is rooted in gender stereotypes and thus is a subset of sex discrimination. It recognized that its previous precedents were unworkable because of the difficult lines that were required to be drawn. For example, a woman might have had a Title VII claim if she was fired for being perceived as too “macho” but not if she was fired for being perceived as lesbian.

Third, the court held that sexual orientation discrimination is based on an employer’s opposition to association between particular sexes and thereby discriminates against employees based on their sex. The 2nd Circuit had previously recognized associational discrimination as a violation of Title VII in the context of race discrimination. Thus, like antimiscegenation policies, discrimination based on sexual orientation is a form of associational discrimination prohibited by Title VII.

Four concurring opinions and three dissenting opinions were authored by various judges. Judge Dennis Jacobs concurred in only the associational discrimination justification and found it unnecessary to reach the others, explaining, “A ruling based on Mr. Zarda’s same-sex relationship resolves this appeal; good craft counsels that we go no further. Much of the rest of the Court’s opinion amounts to woke dicta [socially conscious observations that aren’t binding as legal precedent].”

Judge Robert Sack’s opinion also concluded that the appeal could be decided on the “simpler and less fraught” theory of associational discrimination. He noted that the court is in “the context of something of a revolution in American law respecting gender and sex” and therefore thought it best to tread carefully.

Judge José Cabranes concurred only in the judgment in a very brief opinion, essentially opining that his colleagues spilled too much ink getting to the point that sexual orientation is a function of sex, end of story. Judge Cabranes even dropped a footnote quoting a text from the third century B.C. to underscore his point that less is more. Judge Raymond Lohier, Jr., favored a textualist approach and concluded that sex subsumes sexual orientation just as race subsumes ethnicity.

The primary dissent was authored by Judge Gerard Lynch. He explained that he would be “delighted to wake up one morning and learn that Congress had just passed legislation adding sexual orientation to the list of grounds of employment discrimination prohibited under Title VII” and would be “equally pleased to awake to learn that Congress had secretly passed such legislation more than half a century ago.” However, “we all know Congress did no such thing.” He examined the historical context of the passage of the Civil Rights Act of 1964 and essentially concluded that classifying people by sexual orientation isn’t the same as classifying them by sex. Discrimination against people whose sexual orientation is homosexual rather than heterosexual, however offensive, isn’t discrimination that treats men and women differently. He also distinguished the majority’s arguments from the U.S. Supreme Court’s constitutional analysis of gay marriage.


The 2nd Circuit is the third federal appellate court to consider sexual orientation discrimination questions recently. The 7th Circuit, also sitting en banc, ruled in Hively v. Ivy Tech that discrimination based on an employee’s sexual orientation violates Title VII. The 11th Circuit, however, held the opposite in Evans v. Georgia Regional Hospital and declined to hear the case en banc. The 8th Circuit is the next court to consider the issue.

Recently, Vermont Attorney General T.J. Donovan joined other attorneys general in filing an amicus brief arguing that Title VII encompasses discrimination on the basis of sexual orientation.

There’s now a split among federal circuit courts. The split could be resolved by the Supreme Court or Congress, but the latter seems unlikely in the current political climate. For now, the 2nd Circuit’s decision is the law in Vermont, New York, and Connecticut.

While it was—and remains—illegal to discriminate on the basis of an employee’s sexual orientation in Vermont, the 2nd Circuit’s decision will permit employees to pursue federal discrimination claims based on sexual orientation. That makes it more likely that employees will file future claims in federal court.

Furthermore, Vermont courts still look to federal law when interpreting state law, so future federal decisions regarding discrimination based on sexual orientation will have implications for state law.

Kendall Hoechst can be reached at or 802-859-7042.