The Other Side of Zarda: A Checklist from Judge Lynch's Dissent



Bloomberg Law® has brought you wall-to-wall coverage of Zarda v. Altitude Express, Inc.2018 BL 62979 (2d Cir. Feb. 26, 2018), the Second Circuit’s recent landmark decision that interpreted Title VII to cover discrimination against sexual orientation. 

The court, sitting en banc, concluded that a recently deceased gay male former skydiving instructor was entitled to a new trial on his Title VII claim that was premised on a theory that he was fired because he was homosexual.   Though not explicitly written into Title VII, the en banc majority concluded that sexual orientation discrimination is a form of discrimination “because of sex” and is thus a form of sex discrimination.

As this case is a strong candidate for Supreme Court review, practitioners will benefit from a summary of the points of law from the lead dissenting opinion so that the issues of contention can be better understood.

In a tempered, friendly written opinion, Judge Gerald Lynch, a Democratic judicial nominee twice over (President Clinton appointed him to the Southern District of New York in 1995, and President Obama elevated him to the Second Circuit in 2009) refused to find that Title VII protects sexual orientation. 

His dissent was joined partially by Judge Debra Ann Livingston, a George W. Bush appointment, and a separate, short dissent was filed by Judge Reena Raggi, also a Bush appointee.

For a quick reference tool, here are some of the highlights from Judge Lynch’s dissent, which are sure to be referenced by other federal courts that address this issue:

State Laws

Judge Lynch first examined state-level anti-discrimination laws and found it persuasive that states that added explicit “sexual orientation” provisions to their respective anti-discrimination laws did so when those statutes already protected against discrimination based on sex.

Original Intent

Though the definition of “sex” has since been interpreted to include both men and women, Judge Lynch looked at the historical context underpinning the passage of the Title VII, explaining that the sex provision “was intended to eliminate workplace inequalities that held women back from advancing in the economy” and that women were intended to be the primary beneficiaries of the legislation. 

Women were a category of people whom Congress sought to protect just as it generally sought to protect African-Americans by way of a broadly labeled “race” provision. Judge Lynch explained that the logical extension of that historical foundation was that “sex” was simply a way of delineating between biological men and women, and not the potpourri of relational associations that are incidental to one’s gender.

Structural History – Legislative and Judicial Inaction

By 1991, three federal courts of appeals had declined to extend Title VII to “sexual orientation” claims (Williamson v. A.G. Edwards and Sons, Inc., 876 F.2d 69 (8th Cir. 1989)DeSantis v. Pac. Telephone and Telegraph Co., Inc., 608 F.2d 327 (9th Cir. 1979)Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979)), and there were more than 25 Congressional attempts to add sexual orientation as a basis of discrimination. 

Additionally, the EEOC’s position in 1990 was that sexual orientation was not covered by the statute.  Against this backdrop, Judge Lynch concluded that Congress, or at least many of its members, did not believe Title VII extended to sexual orientation discrimination claims in the early 1990s.  He found it persuasive that the statute has not been amended to reflect otherwise since then. 

Gender Neutrality

In perhaps his simplest argument, Judge Lynch said that discrimination based on sexual orientation simply has nothing to do with one’s sex.  Though sexual orientation discrimination necessarily requires notice of the gender of the employee in question, Judge Lynch did not see that gender discrimination necessarily follows.


Judge Lynch took issue with the majority’s reliance on the notion that sexual orientation discrimination was a form of stereotyping based on one’s sex, because, as he saw it, the stereotyping in the context of sexual orientation is not dependent on how men or women are supposed to behave, but rather that, in general, people should behave in a heterosexual manner.

Judge Lynch’s dissenting opinion, while ultimately not carrying the day in Zarda, is sure to provide a blueprint for any future arguments that claim sexual orientation is not covered by Title VII.  For coverage of this case, and any future developments regarding the scope of Title VII’s coverage, stay tuned to Bloomberg Law® 

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