Appeals Court Rules Firing Over Sexual Orientation Is Illegal

Gay workers and their corporate supporters won a legal victory over the Trump administration as a federal appeals court ruled that firing people over their sexual orientation is a form of illegal sex discrimination.

The appeals court in Manhattan overturned its own previous rulings, saying “legal doctrine evolves.” It’s the second ruling in the U.S. to break with precedent in finding that workplace discrimination based on sexual orientation is illegal. A third appeals court ruled the other way last year. The split among the courts sets up a possible Supreme Court showdown.

“Sexual orientation discrimination — which is motivated by an employer’s opposition to romantic association between particular sexes — is discrimination based on the employee’s own sex,” Judge Robert Katzmann wrote in an opinion for the full court’s majority on Monday.

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Skydiving instructor Donald Zarda claimed he was fired by Altitude Express Inc. because he was gay. He argued that Title VII of the Civil Rights Act of 1964, which bars workplace discrimination on the basis of sex, race, color, national origin and religion also includes sexual orientation. Zarda, who sued in 2010, died in a base-jumping accident in Switzerland in 2014. His estate and relatives carried on with the case.

“I think this would have meant the world to him. I think he would have been very excited and very encouraged,” said Melissa Zarda, Donald’s sister. “I feel strongly that in the workplace employees should be evaluated based on their job performance and by their work ethic and never by who they love.”

Zarda wasn’t fired for being gay, and his employer knew he was gay when he was hired, Saul Zabell, the lead attorney representing Altitude Express, said after the ruling was handed down. He said the company agreed Title VII should be amended to include sexual orientation.

“It exceeds the judicial mandate to re-interpret Title VII to say that, although for the last 30 years Title VII has not covered sexual orientation, now it does,” Zabell said. “Shame on Congress for not being able to get it together to change Title VII.”

A panel of three appeals court judges ruled against Zarda in April. He was granted a rehearing before the full appeals court, which has authority over federal courts in New York, Connecticut and Vermont. In the majority opinion, Katzmann said sexual-orientation stereotyping falls within Title VII’s prohibition against discrimination “because sex is necessarily a factor in sexual orientation.”

Ten judges agreed on the result of the case, although five disagreed with the majority’s reasoning. Three dissented from the outcome.

Trump Administration

“This is a long due victory for equality.” said Sarah Warbelow, legal director for the Human Rights Campaign, which advocates for lesbian, gay, bisexual, transgender and queer rights.

The Trump administration argued in support of the skydiving company, based on New York’s Long Island. The U.S. said courts must take legislative intent into consideration, and that Congress didn’t have the LGBT community in mind when it crafted the law.

A group of 50 companies and organizations — including Microsoft Corp., Alphabet Inc.’s Google and Viacom Inc. — filed documents in June arguing discrimination based on sexual orientation should be illegal.

The government’s decision to oppose a gay worker has been cited by Trump’s critics as evidence that he’s pandering to religious conservatives. The president’s supporters say the courts need to be reined in and shouldn’t be extending rights that only Congress can establish.

The Justice Department is committed to protecting the civil and constitutional rights of all individuals, Devin O’Malley, a department spokesman, said in an emailed statement.

“We remain committed to the fundamental principle that the courts cannot expand the law beyond what Congress provided,” O’Malley said. “The position that the department advocated in this case has been its longstanding position across administrations and remains the law of nine different Courts of Appeals.”

Congress Declines

Congress for years has declined to pass legislation explicitly banning anti-gay discrimination in the workplace and most states don’t have such laws. Attorney General Jeff Sessions, a former U.S. senator from Alabama, was one of the lawmakers who sought to block such legislation. He also voted to ban same-sex marriage nationwide and sought to bar LGBT Americans from the military.

Title VII has been broadened by the courts over the years. The Supreme Court in 1986 ruled that the law, previously limited to “tangible economic discrimination,” also prohibited sexual harassment. A few years later, the high court determined the law barred discrimination in the workplace based on gender stereotypes, in a suit brought by a woman who claimed she’d been denied partnership at an accounting firm because her clothing and appearance didn’t conform to sex stereotypes.

But that’s where the courts drew the line. In 2000, a federal appeals court ruled that the addition of protection for gender stereotypes couldn’t be used to “bootstrap” protection based on sexual orientation.

A handful of gays and lesbians have filed suits in recent years, with mixed success.

In 2015 the U.S. Equal Employment Opportunity Commission said a claim of bias based on sexual orientation can be brought under Title VII. In March 2017, the appeals court in Atlanta ruled against a lesbian who was fired from a hospital, and the Supreme Court declined the hear the case. A month later, the appeals court in Chicago ruled in favor of a lesbian who was fired by a Christian college.

In his dissent on Monday, U.S. Circuit Judge Gerard Lynch said he’d “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 the law. But Congress, he added, has so far done “no such thing.”

The case is Zarda v. Altitude Express, 15-3775, U.S. Court of Appeals for the Second Circuit (Manhattan).

Copyright 2018 Bloomberg.

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