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We all know what the word “sex” means, right? Most of us learned this at a very young age. Merriam-Webster’s Dictionary defines it as “the state of being male or female.” But what does it mean to discriminate “because of … sex”? This is the language used in Title VII of the Federal Civil Rights Act (“Title VII”), which prohibits an employer from discriminating against an individual because of such individual’s race, color, religion, sex, or national origin. Does discrimination “because of … sex” also include discrimination because of sexual orientation? Although a majority of courts currently say no, in a ruling on Monday, the Second Circuit Court of Appeals became the second federal appeals court to expand the meaning of discrimination “because of … sex” under Title VII to include “sexual orientation.” This ruling overturned the court’s prior law, and allows the plaintiff to move forward with a discrimination lawsuit under Title VII after being fired for telling a client he was gay.

Let’s back up and discuss the context of this ruling. The Second Circuit, which exercises federal appellate jurisdiction over Connecticut, New York and Vermont, decided to review for a second time the case of Zarda v. Altitude Express, Inc. dba Skydive Long Island,ⁱ which raised the issue of whether discrimination on the basis of sexual orientation constitutes unlawful gender stereotyping under Title VII. The United States Supreme Court has interpreted Title VII to prohibit discrimination “because of … sex” based upon an employee’s failure to conform to gender stereotypes.ⁱⁱ The question is whether this reasoning also applies to gender stereotypes about sexual attraction. Granted, we should all know what the word “sex” means, but in the context of discrimination, the meaning of this three-letter word is in dispute.

The Zarda case alleged both a state law discrimination claim and a federal claim for violations of Title VII. The facts of the case are that Zarda worked as a sky-diving instructor who regularly performed tandem skydives, strapped hip-to-hip and shoulder-to-shoulder with clients. This close physical proximity lead coworkers to routinely make sexual jokes and comments about sexual orientation. Zarda made a practice to let female clients know that he was gay to alleviate any concern they might have about being strapped to a male instructor. A customer’s boyfriend complained that Zarda touched his girlfriend inappropriately and used his sexual orientation to excuse it. The employer fired Zarda, who then filed a complaint claiming that all of his male coworkers routinely made light of the fact that they were intimately strapped to a member of the opposite sex, but he was fired because he was honest about the fact he was gay and because he didn’t conform to the “straight male macho stereotype.”

At the time Zarda filed his complaint, the traditional view was that discrimination “because of … sex” in Title VII applies only to male/female discrimination and does not stretch to apply to discrimination for sexual orientation. Following that general theory, the federal district court in Zarda originally granted summary judgment for the employer. Then, in July 2015, the Equal Employment Opportunity Commission (“EEOC”) changed course and decided that sex discrimination includes sexual orientation discrimination.ⁱⁱⁱ After this EEOC decision, Zarda moved the district court to reinstate his Title VII claim. Based on Second Circuit precedent, the district court declined to do so. Zarda appealed and the Second Circuit initially affirmed the district court’s decision, relying on its prior decisions.

Monday’s ruling is unusual for several reasons. First, subsequent to the Second Circuit’s affirmation, the court decided on its own to convene a rehearing en banc, meaning that the entire membership of the court participated in the decision rather than a regular quorum. Most appeals are decided by a panel of three judges and not the entire court. Indeed, the Second Circuit rarely grants en banc hearings at all.^iv

Second, the Second Circuit found that its own prior precedents should be overruled and, therefore, the court held that sexual orientation discrimination constitutes a form of discrimination “because of . . . sex” in violation of Title VII. The Second Circuit recognized that the view contained in its prior precedents was the consensus among sister circuits and the EEOC, but “legal doctrine evolves,” and this was no longer the preferred view. The Second Circuit was particularly persuaded by a 2015 EEOC decision that included sexual orientation in Title VII’s prohibition for discrimination based on sex.^v Two other federal circuits had recently revisited the question of whether claims of sexual orientation are actionable under Title VII. Last year, the Eleventh Circuit declined to recognize such a claim^vi. One month later, the Seventh Circuit took “a fresh look” and held that “discrimination on the basis of sexual orientation is a form of sex discrimination.”^vii “Taking note of the potential persuasive force of these new decisions,” the Second Circuit convened en banc to reevaluate and ultimately voted to change its prior position.^viii

Third, the federal government participated in the case on both sides of the debate, with two different agencies arguing opposing positions before the court. The EEOC advocated on behalf of Zarda and in support of its reading of Title VII to include sexual orientation discrimination as a subset of sex discrimination. The Department of Justice, on the other hand, argued that Title VII does not protect against sexual orientation discrimination. Finally, the en banc court issued a plurality opinion, in which a majority of the judges agreed that Title VII prohibits sexual orientation discrimination but less than a majority agreed with all of the court’s reasoning.

Importantly, Zarda is not a West Virginia decision or even a decision of the Fourth Circuit^ix and therefore is not controlling law in West Virginia. Even so, this decision is significant because it demonstrates a growing split of authority,^x and perhaps a growing trend in federal courts to change prior thinking on this issue in favor of protecting sexual orientation under Title VII. The decision also contains an extensive discussion of the arguments framing both sides of the debate – many of which have not been considered in earlier decisions on this issue.

So, what is West Virginia’s current position on the issue? The West Virginia Supreme Court has not addressed whether a sexual orientation discrimination claim violates the West Virginia Human Rights Act, which is the state equivalent of Title VII. In 2017, the West Virginia Supreme Court did, however, examine the same phrase that was analyzed in Zarda – “because of . . . sex,” in State v. Butler. ^xi Butler involved a criminal statute, not Title VII. The defendant was charged with battery and civil rights violations for punching two men he saw kissing each other. The State alleged the civil rights violation under the criminal statute that prohibits certain acts including an injury to a person because of the person’s “sex.” The majority opinion of the West Virginia Supreme Court found the term “sex” has a common and ordinary meaning that is clear and unambiguous and has “a very different meaning and import than the term ‘sexual orientation.’”^xii Significantly, the criminal statute did not define the term “sex”; likewise, Title VII includes no such definition. While Butler is not a Human Rights Act or Title VII case, the State urged the Court to apply recent developments in Title VII precedent that the State argued prohibits sexual orientation discrimination when the behavior is determined to be “because of sex.” The majority did not find Title VII cases persuasive because it held that the term “sex” is unambiguous.

One would think that the majority opinion in Butler indicates that the West Virginia Supreme Court would not be persuaded to stretch the term “because of sex” in the West Virginia Human Rights Act to include sexual orientation discrimination. However, 2 of the 5 Supreme Court justices disagreed with the majority in Butler. Justice Margaret Workman filed a written dissent and Justice Robin Davis joined in the dissent, which matches the Second Circuit’s analysis in Zarda. The dissent acknowledges that the criminal statute does not contain the words “sexual orientation,” but considered the majority’s decision as “overly simplistic and constricted.”^xiii The dissent states that: “the pertinent question is not whether the statute contains the words “sexual orientation.” Rather, it is whether the crime was committed because of the victims’ sex. The phrase “because of … sex” encompasses the actions taken against the victims in this case.”^xiv

So, what does sex mean in West Virginia in the context of a discrimination claim? Or, phrased another way, does West Virginia law prohibit employment discrimination on the basis of sexual orientation? The answer is unclear, but given Monday’s decision of the Second Circuit in Zarda and the strong dissent in Butler, West Virginia employers should be wary and view sexual orientation as a protected class at least until the Legislature or the West Virginia Supreme Court provide further guidance.