\u3ci\u3eZarda\u3c/i\u3e and Sexual Orientation Expression: A New High for Title VII Interpretation

Under current federal law, a majority of jurisdictions decline to extend Title VII protections based on sexual orientation; however, a growing number of circuits have reversed precedent and held that Title VII prohibits discrimination sexual orientation discrimination. The Second Circuit’s en banc decision in Zarda v. Altitude Express reached the conclusion that sexual orientation discrimination is as a cognizable claim under Title VII because in order to discriminate against a person sexual orientation, you naturally first have to take their gender into account. The Supreme Court granted certiorari and has now heard oral arguments. Part I of this note provides the legislative history of the inclusion of “because of gender” on the list Title VII’s prohibitions and analyzes Supreme Court jurisprudence in the statutory interpretation of “gender.” Part II will provide the relevant facts and legal arguments put forth in Zarda v. Altitude Express. Part III will critique the decision and put forth a conclusion recommending the most persuasive legal arguments for incorporating Title VII protection against sexual orientation discrimination