In a major victory for gay rights advocates, an influential federal appeals court has decided that the principal federal law against employment discrimination protects gay as well as heterosexual employees.
The federal Circuit Court of Appeals for the Second Circuit, based in Manhattan, decided in the case of Zarda v. Altitude Express, Inc. on February 26 that Title VII of the 1964 Civil Rights Act protects gays — even though the statute itself does not say so. Title VII states that employment discrimination is prohibited on the basis of “sex,” and most federal appeals courts in the past have ruled that “sex” means biological gender, not sexual orientation or preference. In fact, in a footnote the en banc Zarda majority opinion states that “This opinion assumes [for the sake of argument] that ‘sex’ in Title VII means biologically male or female.”
The Second Circuit decision is especially significant because it was decided by the entire membership of the court, all 13 judges sitting “en banc” to decide the issue, something that happens very infrequently and only on issues of major importance. As if to underscore the complexity of the issues involved, the judges filed eight separate opinions totaling 163 pages, including three dissents.
The Second Circuit majority ruled in favor of the estate of a deceased skydiving instructor named Donald Zarda, who had claimed that he was fired from his job by his employer, Skydive Long Island, after telling a client that he was gay. The employer said it had fired Zarda because during the summer of 2010 a female student had complained that during a tandem skydiving jump in Long Island Zarda had groped her. In such tandem skydives the instructor is strapped hip‐to‐hip and shoulder‐to‐shoulder with the client while jumping out of an airplane with parachutes.
The U.S. Equal Opportunity Commission, a federal agency that enforces most federal laws against discrimination, had held in 2015 that the prohibition against gender discrimination in Title VII of the Civil Rights Act of 1964 extended to sexual orientation. However, the courts have not widely adopted the agency’s interpretation, and the U.S. Supreme Court has yet to weigh in with its own decision.
The Atlanta-based Eleventh Circuit Court of Appeals, which covers Florida, decided last year in a divided ruling in the case of Jameka Evans v. Georgia Regional Hospital that sexual orientation is not protected by Title VII. In contrast, the Chicago-based Seventh Circuit decided, also last year, by an 8-3 en banc decision in the case of Hively v. Ivy Tech Community College, that such rights do exist under the federal statute. The divergent views on the issue were demonstrated when in appeal briefs filed with the Second Circuit in the Zarda case, the EEOC argued that gays were protected by Title VII, while another agency of the Trump Administration, the U.S. Justice Department, argued that they were not.
Chief Judge Robert A. Katzmann wrote for the Zarda majority: “Because Congress could not anticipate the full spectrum of employment discrimination that would be directed at the protected categories, it falls to courts to give effect to the broad language that Congress used.”
“Title VII’s prohibition on sex discrimination applies to any practice in which sex is a motivating factor,” Judge Katzmann wrote. “Sexual orientation discrimination 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.”
In dissent, Judge Gerard E. Lynch wrote that there is no interpretation of the text that would show that Congress included protections for gay men and women when it enacted Title VII. “The Civil Rights Act [of 1964] as a whole was primarily a product of the movement for equality for African-Americans,” he noted, and the word “sex” was added to the law at the insistence of women’s rights groups. “Discrimination against gay women and men … was not on the table for public debate. … there was no discussion of sexual orientation discrimination in the debates on Title VII of the Civil Rights Act. … By prohibiting discrimination against people based on their sex, [the Act] did not, and does not, prohibit discrimination against people because of their sexual orientation. ”
Lynch added, however, “Speaking solely as a citizen, I would be delighted to awake one morning and learn that Congress had just passed legislation adding sexual orientation to the list of grounds of employment discrimination prohibited under Title VII of the Civil Rights Act of 1964.”
U.S. Attorney General Jeff Sessions criticized the decision as being wrong about Title VII’s reach. “I guess maybe the judges woke up that morning, read the New York Times or something, and decided their previous ruling was wrong,” he told a group of state attorneys general in Washington, D.C. on the day after the ruling was published.
Zarda had filed his lawsuit in September of 2010, but while it was pending he was killed in a BASE parachute jump in Sex Rouge, Switzerland, on October 3, 2014, at age 44. A native of Missouri, Zarda had lived in Dallas for 14 years before moving to New York. An airplane pilot, Zarda also engaged in BASE jumping as a member of an elite group of wingsuit athletes.
At the trial level U.S. District Judge Joseph F. Bianco in Central Islip, New York, had dismissed Zarda’s Title VII claim on summary judgment, finding that Title VII did not prohibit discrimination based on sexual orientation, and that decision was upheld by a three-judge panel of the Second Circuit. The new en banc decision reverses both of those prior rulings and allows the suit to continue, now in the name of Zarda’s Estate. Two of the judges who had ruled against Zarda in the earlier three-judge panel decision, Dennis Jacobs and Robert D. Sack, voted in his favor this time, while the third, Judge Lynch, wrote the principal dissenting opinion.
Since Congress has shown no interest in amending Title VII to protect gays, the legal environment will remain murky until the U.S. Supreme Court tackles the subject. And that may not happen anytime soon. Just last December the Court declined to review the Eleventh Circuit’s ruling in the Jameka Evans case that Title VII did not protect gay rights. In that case the Circuit Court had affirmed the dismissal of a lesbian security guard’s allegations that a Georgia hospital had violated her rights under Title VII by firing her over her sexuality.
However, if not settled out of court by the parties, the Zarda litigation may well reach the Supreme Court in the not too distant future and provide another opportunity for the justices to construe the extent of Title VII’s protections in the workplace. Whether the Court would take up that case is anybody’s guess.