Gay workers protected by Civil Rights Act, court rules
NEW YORK — A federal appeals court in New York on Monday became the second 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 Second 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 Katzmann. Three judges dissented.
Title VII bars employment discrimination on the basis of “race, color, religion, sex or national origin.” The Seventh 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.”
Most federal appeals courts in the past have ruled that “sex” means biological gender, not sexual orientation.
The new decision, involving skydiver Donald Zarda, only applies in the Second 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.
Zarda was fired in 2010 from a skydiving job in Central Islip 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. Zarda died three years ago in a wingsuit accident.
The case led to two government agencies offering opposing views. The Equal Employment Opportunity Commission said Title VII covers sexual orientation. The Department of Justice had argued it did not.
“We remain committed to the fundamental principle that the courts cannot expand the law beyond what Congress has provided,” Justice Department spokesman Devin O’Malley said. But he said the department will continue to enforce numerous other laws Congress enacted to prohibit discrimination based on sexual orientation.
The EEOC said in a statement that the ruling was “a generous view of the law of employment protections, and a needed one.”
One of the three dissenting judges, Gerald Lynch, said Congress never intended Title VII to cover sexual orientation, though he added: “I would be delighted to awake one morning and learn Congress had just passed legislation adding sexual orientation to the list of grounds of employment discrimination prohibited under Title VII.”