Second Circuit Finds Sexual Orientation Discrimination Actionable Under Title VII

Last week, in Zarda v. Altitude Express, Inc., the United States Court of Appeals for the Second Circuit broke with its own precedent, holding that "sexual orientation discrimination constitutes a form of discrimination 'because of sex,' in violation of Title VII."¹ The Second Circuit now joins the Seventh Circuit and the Equal Employment Opportunity Commission ("EEOC") in recognizing such a claim.

Facts and Procedural History

Donald Zarda was a gay man who worked as a sky- diving instructor at Altitude Express. Given that his job often required him to participate in tandem skydives, strapped to his clients, he sometimes told his female clients about his sexual orientation in order to make them feel more at ease.² In June 2010, Zarda made such a comment to a female client with whom he was preparing for a tandem skydive.³ After the jump was successfully completed, the client told her boyfriend that Zardahad inappropriately touched her and then disclosed his