On April 18, 2017, the U.S. Circuit Court of Appeals for the Second Circuit affirmed the U.S. District Court for the Eastern District of New York’s decision in Zarda v. Altitude Express, dismissing Donald Zarda’s sexual orientation discrimination claims brought under Title VII of the Civil Rights Act of 1964 (“Title VII”). In reaching its decision, the Second Circuit relied on its 2000 decision in Simonton v. Runyon, where the court held that Title VII does not protect against discrimination based on sexual orientation. However, on May 25, 2017, the Second Circuit granted en banc review in Zarda, signaling that the Second Circuit may be ready to reexamine Simonton and revisit its position on Title VII sexual orientation discrimination claims.
In Simonton, Dwayne Simonton, a postal worker, was harassed because of his sexual orientation. The harassment was so severe that Simonton suffered a heart attack as a direct result of the abuse. While the Second Circuit’s decision noted the severity of the harassment and rebuked the behavior, the court nonetheless held that Title VII’s prohibition against discrimination based on “sex” does not include discrimination based on sexual orientation and dismissed Mr. Simonton’s Title VII sexual orientation discrimination claims. The precedent set by Simonton has prevented countless individuals from bringing sexual orientation discrimination claims under Title VII, leaving individuals stranded in their search for justice.