Appeals court: Civil Rights Act protects gay workers

NEW YORK — A federal appeals court in Manhattan ruled Monday that federal civil rights law bars employers from discriminating based on sexual orientation.

The case, which stemmed from the 2010 dismissal of a Long Island sky-diving instructor, was a setback for the Trump Justice Department, whose lawyers found themselves in the unusual position of arguing against government lawyers from the Equal Employment Opportunity Commission.

The EEOC had argued that Title VII of the 1964 Civil Rights Act, which bars workplace discrimination based on “race, color, religion, sex or national origin,” protected gay employees from discrimination on the basis of sexual orientation.

But the Trump Justice Department took the position that the law did not reach sexual orientation, and said the EEOC was “not speaking for the United States.”

The Justice Department and Altitude Express, the instructor’s employer, could seek review of the decision by the U.S. Supreme Court, although neither party had any immediate comment on the ruling.

It its decision, the U.S. Court of Appeals for the 2nd Circuit said, “We see no principled basis for recognizing a violation of Title VII for associational discrimination based on race but not on sex.”

“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,” the appellate court added, “making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.”

The ruling, written by the 2nd Circuit’s chief judge, Robert Katzmann, was joined, in part or whole, by nine other judges. Three judges dissented. In addition to Katzmann’s decision, seven judges wrote separate opinions, concurring and dissenting.

The appeals court only rarely issues decisions in what is known as the en-banc court, in which all eligible judges, in this case 13, participate.

Usually, the appeals court issues rules through three-judge panels.

The issue, which had divided federal appeals courts around the country, centered on the firing of Donald Zarda by Altitude Express. Zarda had told a female student as they prepared for a sky-diving jump that he was “100 percent gay,” and her boyfriend complained to the school about the encounter.

Zarda said that he had made the statement to the woman because she had seemed uncomfortable with the close physical contact involved in her being so tightly strapped to her instructor.