Title VII of the Civil Rights Act is the federal law that makes it illegal for employers to discriminate against employees based on certain protected characteristics. Specifically, Title VII prohibits employers from discriminating against employees based on sex. For decades, the Second Circuit Court of Appeals – which is the federal appeals court that exercises jurisdiction in New York, Connecticut and Vermont –  interpreted Title VII’s prohibition of sex discrimination to apply to claims of gender discrimination and sexual harassment but not to discrimination based on sexual orientation.

In late February 2018, the Second Circuit decided en banc that Title VII’s prohibition of discrimination because of sex applies to sexual orientation discrimination, too. Following guidance from the Equal Employment Opportunity Commission, the decision overruled decades of Second Circuit precedent and recognized that treating an employee differently because the employee doesn’t conform to certain gender stereotypes is necessarily discrimination because of the employee’s sex.

While this decision is a major change in federal employment law, sexual orientation discrimination long has been illegal under the New York State Human Rights Law. But that’s not to say this decision is without impact. It’s important to remember that the causation standard used for State law claims of discrimination is stricter than the standard applied to federal (Title VII) claims. As a result, an employee complaining that she was terminated because of her sexual orientation may have an easier time making her claim under federal law than she would have under New York State law alone.

For employers, the best practice is to have policies and training in place to avoid claims of sexual orientation discrimination before they occur. If you’re an employer seeking guidance on employment policies, feel free to contact the attorneys at The Coppola Firm.