A federal appeals court in New York on Monday became the second one in the country to break with precedent and rule that U.S. anti-discrimination law protects employees from being fired because of their sexual orientation.
Ruling in the case of a skydiving instructor who said he was fired after telling a client he was gay, the 2nd U.S. Circuit Court of Appeals in Manhattan said that while it and other courts around the U.S. had previously found that Title VII of the 1964 Civil Rights Act didn’t cover sexual orientation, “legal doctrine evolves.”
“We now conclude that sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination,” said the majority opinion, written by Chief Judge Robert A. Katzmann. Three 2nd Circuit judges dissented.
Title VII of the 1964 Civil Rights Act bars employment discrimination on the basis of “race, color, religion, sex or national origin.” The 7th U.S. Circuit Court of Appeals in Chicago last year also concluded “discrimination on the basis of sexual orientation is a form of sex discrimination.”
The new decision, involving skydiver Donald Zarda, applies only in the 2nd Circuit’s territory, which includes New York, Vermont and Connecticut. But it could set the stage for an appeal to the Supreme Court, which declined in December to hear the case of a Georgia woman who had also argued that she was fired for being gay.
“Today’s ruling is the latest victory affirming that employees should be evaluated only on their work ethic and job performance — not on who they are or who they love,” Masen Davis, chief executive of Freedom for All Americans, said in a release.
“Everyone has the right to feel safe and protected at work,” said Eric Lesh, executive director of the LGBT Bar Assn. of New York.
The case led to two government agencies offering opposing views. The Equal Employment Opportunity Commission said Title VII of the 1964 Civil Rights Act covers sexual orientation. The Department of Justice had argued that it did not.
Neither immediately commented Monday.
Zarda was fired in 2010 from a skydiving job in Central Islip, N.Y., that required him to strap himself tightly to clients so they could jump in tandem from an airplane. To put one female student at ease about the physical contact, he told her not to worry because he was gay. The school fired Zarda after the woman’s boyfriend called to complain about his behavior.
Zarda died three years ago in a wingsuit accident in Switzerland.
Most federal appeals courts in the past have ruled that “sex” means biological gender, not sexual orientation. Katzmann noted that the 2nd Circuit itself had ruled in 2000 and 2005 that sexual orientation wasn’t covered by the law, consistent with rulings by other federal appeals courts and the Equal Employment Opportunity Commission.
During 2nd Circuit oral arguments in September, one judge suggested the Justice Department changed its position after President Trump was elected. The department filed its legal arguments the same day Trump announced on Twitter that transgender people could no longer serve in the military.