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Appeals court rules Title VII covers sexual orientation


In a long-awaited major ruling, the 2nd U.S. Circuit Court of Appeals in New York held in an en banc ruling Monday that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation.

The 10-3 en banc ruling by the 2nd Circuit in Melissa Zarda et al. v. Altitude Express, which further intensifies an existing circuit split on the issue, enhances the chances of an eventual U.S. Supreme Court consideration of the issue.

“Sexual orientation discrimination constitutes a form of discrimination ‘because if sex,’ in violation of Title VII” and overturns previous 2nd Circuit rulings, says the majority opinion in the case, in overturning a lower court ruling and remanding the case for further proceedings.

The case involves Donald Zarda, a gay skydiver, who sued his former employer, Calverton, New York-based Altitude Express Inc., alleging he was fired from his job as a skydiving instructor because of his sexual orientation.

Mr. Zarda later died in a skydiving accident, but his estate’s executors have been substituted as plaintiffs in the case.

A three-judge panel of the 2nd Circuit appeals court said in April it did not have the authority to overturn circuit court precedent on the issue, but the appeals court then agreed to hear the case en banc in May.

In March, in Anonymous, Matthew Christiansen v. Unicom Group et al., a three-judge 2nd Circuit panel Circuit ruled in gay plaintiff’s favor, but on the basis of gender stereotyping discrimination, not because of sexual orientation. The appeals court has also agreed to reconsider that case en banc.

In April, the 7th U.S. Circuit Court of Appeals in Chicago also held in Kimberly Hively v. Ivey Tech Community College that sexual orientation is protected under Title VII, in a case filed by a lesbian college instructor.

But these rulings conflict with a March 2017 2-1 ruling by the 11th U.S. Circuit Court of Appeals in Atlanta in Jameka K. Evans v. Georgia Regional Hospital, which held that Title VII does not cover sexual orientation.

That lawsuit was filed by a lesbian security guard, who charged she was denied equal pay or work, harassed and physically assaulted or battered while at her job at Georgia Regional Hospital in Savannah.

In Monday’s ruling in the New York case, the majority opinion said based on precedent, there is no justification for a categorical rule excluding sexual orientation claims under Title VII.

“Title VII’s prohibition in sex discrimination applies to any practice in which sex is a motivating factor,” concludes the ruling.

It is a “subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account,” the ruling states.

“Sexual orientation is also based on assumptions or stereotypes about how members of a particular gender should be, including to whom they should be attracted.

“Finally, sexual orientation discrimination is associational discrimination because an adverse employment action that is motivated by the employer’s opposition to association between members of particular sexes discriminates against an employee on the basis of sex.

“Each of these three perspectives is sufficient to support this Court’s conclusion and together they amply demonstrate that sexual orientation discrimination is a form of sex discrimination,” said the opinion.

“Although sexual orientation is ‘assuredly not the principal evil that Congress was concerned with when it enacted Title VII,’” said the ruling, in quoting a U.S. Supreme Court ruling, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils.”

In addition to the majority ruling, there were three concurring opinions and two dissenting opinions. One of the dissenting opinions said, “I cannot conclude…as the majority does, that sexual orientation discrimination is a ‘subset’ of sexual discrimination...and is therefore included among the prohibited grounds of workplace discrimination listed in Title VII.”

Defense attorney Mark T. Phillis, a shareholder with Littler Mendelson P.C. in Pittsburgh, said one of the case’s unusual aspects of this case is conflicting amicus briefs submitted by the federal government.

The U.S. Equal Employment Opportunity Commission argued Title VII covers sexual orientation, while the U.S. Justice Department argued against it. There is now a “question of whether the defense in this case decides to appeal this case to the Supreme Court,” said Mr. Phillis.

He said the ruling does increase the likelihood of the Supreme Court considering the issue, although it is unclear whether it will wait until there is another en banc ruling that disagrees with the 2nd and 7th Circuit rulings. The 11th Circuit had declined to reconsider the issue en banc in the Evans case.

More immediately, he said, the 2nd Circuit ruling is likely to be cited in various cases on the issue that are now before U.S. District Courts, said Mr. Phillis.