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Analysis Law and Policy

Another Appeals Court Rules That Firing People for Being Gay Is Discrimination Under Title VII

Jessica Mason Pieklo

Sexual orientation is “doubly delineated by sex,” the majority of the Second Circuit Court of Appeals wrote, “because it is a function of both a person’s sex and the sex of those to whom he or she is attracted." 

On Monday, the full 13-member bench of the Second Circuit Court of Appeals ruled that Title VII of the Civil Rights Act of 1964’s ban on sex discrimination at the workplace covers discrimination based on sexual orientation. The decision is an important step forward on the long and winding road toward equal legal rights for LGBTQ people.

In 2010, Donald Zarda, a skydiving instructor, sued his employer, Altitude Express, Inc., alleging the company fired him because he was gay. Specifically, Zarda alleged he was fired because by being gay, he failed to conform to the “macho” male sex stereotypes of his co-workers.

According to Zarda’s complaint, as part of his job as a skydiving instructor, he would regularly participate in tandem skydives where he was strapped hip-to-hip and shoulder-to-shoulder with clients. Zarda claimed his co‐workers would joke with each other, and sometimes with clients, about the intimate nature of being strapped to people of the opposite sex; Zarda would instead sometimes disclose to his female clients that he was gay to try and dampen any concern they might have about being strapped to a man for a tandem skydive. Shortly after one female client’s boyfriend complained about Zarda’s behavior to Altitude Express, Zarda was fired.

Zarda sued, claiming sex discrimination under both Title VII and New York law.

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Altitude Express moved for summary judgment on Zarda’s Title VII claim, arguing that prior Second Circuit precedent held Title VII does not cover claims of sexual orientation discrimination. The lower court agreed and dismissed Zarda’s claim, relying on precedent from the Second Circuit Court of Appeals that held the federal civil rights law does not cover sexual orientation. Zarda appealed to the Second Circuit, arguing that precedent should be overturned. On Monday, the full appeals court did just that.

It’s important to remember that in 2010, when Zarda filed his case, the law appeared headed in the opposite direction for LGBTQ workplace protections. Though the Supreme Court has long recognized that an employee’s failure to conform to sex-based stereotypes could be a form of discrimination recognized under Title VII, the federal courts were making a mess trying to decide if being gay fit in that mold. Meanwhile the Equal Employment Opportunity Commission (EEOC) under the Obama administration was inching, ever so slowly, toward recognizing sexual orientation workplace discrimination claims. For example, although it was not a party to the lawsuit, the EEOC supported Zarda’s claims in court.

The Trump administration is, not surprisingly, trying to reverse course and argue that Title VII does not protect against sexual orientation discrimination. Attorney General Jeff Sessions had the Department of Justice (DOJ) oppose Zarda’s claims before the Second Circuit. That left the EEOC in the awkward position of arguing against the DOJ, which usually does not weigh in on private employment discrimination lawsuits. (The EEOC has continued to maintain its position that Title VII covers sexual orientation claims.)

But that reversal ultimately didn’t matter to the majority of Second Circuit judges, who held that sexual orientation discrimination is itself sex-based discrimination. Sexual orientation is “doubly delineated by sex,” the majority wrote, “because it is a function of both a person’s sex and the sex of those to whom he or she is attracted.” 

“Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected,” the majority opinion states.

While an important victory for LGBTQ employees, Monday’s decision does not settle for good the question of whether Title VII covers claims of sexual orientation discrimination. Last April, the Seventh Circuit Court of Appeals ruled in favor of a lesbian who claimed she was fired on the basis of her sexual orientation. But then in December, the Supreme Court declined to hear a case from the Eleventh Circuit, leaving in place a ruling that held Title VII does not cover claims of sexual orientation discrimination. That means the federal appeals courts are split—and until the Supreme Court steps in and eventually settles the dispute, LGBTQ employees will continue to face uncertain and potentially conflicting federal workplace discrimination protections. 

Zarda’s case may be the vehicle for such a decision. Because Monday’s opinion was from the entire bench of the Second Circuit, Altitude Express’ only option to appeal lies with the Roberts Court.

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