The 2nd U.S. Circuit of Appeals has weighed in on the issue of employment discrimination on the basis of sexual orientation. The court ruled 10-3 that such discrimination violates the Civil Rights Act of 1964.
The case centered on a New York skydiving instructor who was fired after disclosing that he was gay. This was the second federal appeals court to conclude that sexual orientation discrimination is a form of sex discrimination, setting up a possible appeal to the U.S. Supreme Court.
Two schools of thought on LGBT discrimination
The basic facts of the underlying case are not much disputed. Skydiving instructor Donald Zarda told a customer that he was “100 percent gay.” He intended to allay the woman’s discomfort about being strapped tightly to him during a tandem parachute jump. Her husband took offense and complained to the company, which fired Zarda for disclosing his sexual orientation.
It’s a fairly clear-cut case of discrimination on the basis of LGBT status. But that’s where the agreement ends:
- The lower court and a three-judge panel of the Second Circuit ruled that sexual orientation discrimination is not expressly illegal under federal law. A three-judge panel of 11th Circuit Court of Appeals in Atlanta came to the same conclusion.
- The Equal Employment Opportunity Commission has taken the stance that LGBT discrimination violates the Civil Rights Act, a position supported by a memorandum from President Obama. The Seventh Circuit Court of Appeals in Chicago ruled 8-3 in 2017 that sexual orientation discrimination is a form of sex discrimination.
When the Second Circuit reviewed the case en banc (all members), ten of the justices concurred that sexual orientation discrimination is covered by Title VII of the Civil Rights Act. An 11th justice dissented reluctantly, saying that Congress has not expressly amended the law to include LGBT status.
This case may go to the Supreme Court
The ruling is a legal setback for the Trump administration. The Department of Justice, under Trump appointee Jeff Sessions, took the unusual step of filing a “friend of the court” brief supporting the private company employers in the Varda lawsuit. The amicus brief was filed the same day that President Trump abruptly declared that LGBT persons would not be allowed to serve in the U.S. military.
Congress is unlikely to change the Civil Rights Act anytime soon. But now that two appeals courts have overruled lower courts, there seems to be momentum in the judiciary toward recognizing sexual orientation as a protected status, similar to race, religion, national origin, age, disability and sex.
On the other hand, if this case or a similar one gets to the Supreme Court, Justice Neil Gorsuch – President Trump’s appointee – could be the swing vote. He is known as a strict constructionist who might say that sexual orientation – while unfair – is not explicitly covered by Title VII of the Civil Rights Act.