In an en banc ruling in Zarda v. Altitude Express, the Second Circuit has joined the Seventh Circuit (see Hively v. Ivy Tech Community College) in holding “that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.” Don Zarda, the plaintiff, was a base jumper who died in an accident in 2014.
“Because one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex. Indeed sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted. Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.”
Read the Second Circuit’s decision in full here.