The U.S. Supreme Court could decide next term whether employers can legally discriminate against a worker on the basis of their sexual orientation.
On Tuesday, attorneys representing Altitude Express, Inc., a New York skydiving company, filed a petition for writ of certiorari, asking the Roberts Court to overturn a February ruling from the Second Circuit Court of Appeals that held sexual orientation should be protected under Title VII of the Civil Rights Act’s prohibition on sex discrimination.
The petition was filed in the case of Donald Zarda, a skydiving instructor who in 2010 sued his employer, Altitude Express, Inc., alleging the company fired him because he was gay. 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, including women, according to Zarda’s complaint. 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. In response, Zarda alleged that he would instead sometimes disclose to his female clients that he was gay to try to dampen any concern they might have about being strapped to a man for a tandem skydive. One female client’s boyfriend complained about Zarda’s behavior to Altitude Express. Zarda was fired. He then sued, claiming sex discrimination under Title VII and New York state law.
Zarda alleged he was fired because by being gay, he failed to conform to the “macho” male sex stereotypes of his co-workers and that Title VII prohibits employers from making employment decisions based on such stereotypes. Initially a lower court ruled on behalf of Altitude Express, but in February the full court of the Second Circuit reversed, holding that Title VII did in fact cover claims like Zarda’s.
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“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.
Now it could be up to the Roberts Court to decide if Title VII does in fact cover claims of sexual orientation discrimination. The Seventh Circuit Court of Appeals has ruled it does, finding the law covered claims made by a lesbian who alleged she was fired on the basis of her sexual orientation. But the 11th Circuit Court of Appeals has found otherwise, holding the law did not cover claims of sexual orientation discrimination. The Supreme Court in December declined to take that case.
But the Supreme Court has another opportunity to address the split in the appeals circuits in its coming term.
“Laudable as the ends may be, the means deployed by the Second Circuit nonetheless circumvent the immutable legislative process by which we remain bound to govern,” Altitude Express Inc.’s petition reads. “As citizens and a nation, we can strive for the level of inclusion reached by the Second Circuit. However, this cannot be achieved at the expense of compromising our democratic process.”
In addition to the Zarda case, the Court will consider taking Bostock v. Clayton County, Georgia, another case where the 11th Circuit ruled Title VII did not protect against sexual orientation discrimination.
Should the Court agree to take either or both cases, arguments could happen late this year.