Earlier this week, the 2nd Circuit Court of Appeals, sitting in New York, became the second federal appellate court to rule that Title VII of the Civil Rights Act of 1964, which, among other things, protects against discrimination based on gender, necessarily includes protection against discrimination based on gender orientation. The only other federal appellate court to make a similar ruling is the 7th Circuit Court of Appeals, which sits in Chicago and includes Illinois, Indiana and Wisconsin in its jurisdiction.
The case originated from a skydiving company’s discharge of an instructor, Donald Zarda, in 2010 after he told a female skydiving student that he was “100 percent gay.” He claimed he told her that in response to his perception that she and her boyfriend were uncomfortable with her being strapped to him during instructional sky dives. The company, Atlanta Express denied that Mr. Zarda’s discharge was related to his revelation that he was gay and also argued that Title VII does not protect against claims of discrimination based on sexual orientation. Two courts in New York, including a three-judge panel of the Second Circuit, initially ruled against him.
In 2014, Mr. Zarda died in a sky-diving accident, but his case continued. When the Trump administration withdrew the Obama era support for protection against discrimination based on sexual orientation under Title VII, it also intervened in this suit, which went before the entire 2nd Circuit Court of Appeals for additional rehearing.
The question of law before the court centered around whether sexual orientation discrimination should be included in Title VII’s prohibition against gender discrimination. While Title VII prohibits discrimination based on gender, it is silent as to whether “gender” includes sexual orientation.
In ruling for the plaintiff, the Judge Katzmann said on behalf of the majority that “[S]exual 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.”
The 10-3 ruling included dissent based on a stricter interpretation of Title VII’s coverage consistent with the position of the Justice Department. One dissenting judge wrote “[W]hen interpreting an act of Congress, we need to respect the choices made by Congress about which social problems to address, and how to address them.” Noting that many states (like Illinois) have adopted legislation which provides expanded protections against discrimination, including sexual orientation specifically, the dissenting judge said “I hope that one day soon Congress will join them, and adopt that principle on a national basis,” he wrote. “But it has not done so yet.”
Devin O’Malley, a Justice Department spokesman, said that the department was “committed to protecting the civil and constitutional rights of all individuals,” but it was also “committed to the fundamental principle that the courts cannot expand the law beyond what Congress has provided.”
A split exists between federal appellate courts on whether sexual orientation is covered by Title VII, with the Atlanta based court of appeals reaching an opposite conclusion last year. It is likely that the U.S. Supreme Court will take up this issue in order to resolve this split among the lower federal courts.
This issue is also especially interesting as it affects federal protections against discrimination based on gender identity to the extent that gender identity discrimination is also inextricably tied to gender. We will keep you updated on this important topic.