December 16, 2018
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Employers can’t discriminate based on sexual orientation, court says

Melissa Zarda | AP
Melissa Zarda | AP
This 2014 photo provided by Melissa Zarda is a selfie by her brother Donald Zarda with his plane in the background at the Wood County Airport Collins Field in Mineola, Texas. Zarda was a gay skydiving instructor who is the subject of a sex discrimination ruling. He died three years ago in a wingsuit accident in Switzerland, but on Monday, Feb. 26, 2018, a federal appeals court in New York became the second one in the country to declare that U.S. anti-discrimination law protects employees from being fired over their sexual orientation. The decision involved Zarda, who was fired in 2010 from a skydiving job in Central Islip, N.Y., 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 said, he told her not to worry - he was gay. The school fired Zarda after the woman's boyfriend called to complain.

Discriminating against someone on the basis of sexual orientation is prohibited under federal civil rights law, a federal appeals court ruled Monday as it sided with a gay skydiving instructor who was fired from his job after discussing his sexuality with a client.

The decision from the U.S. Court of Appeals for the 2nd Circuit offers expanded protections for LGBT people and marks a significant loss for President Donald Trump’s Justice Department, which had filed a brief arguing Title VII of the Civil Rights Act of 1964 did not cover sexual orientation discrimination.

But the state of the law is still murky, as federal circuits in other parts of the country have issued mixed opinions. The ruling from the 2nd Circuit, based in Manhattan, could be appealed to the Supreme Court.

Justice Department spokesman Devin O’Malley said in a statement: “The Department of Justice is committed to protecting the civil and constitutional rights of all individuals, and will continue to enforce the numerous laws Congress has enacted that prohibit discrimination on the basis of sexual orientation. We remain committed to the fundamental principle that the courts cannot expand the law beyond what Congress has provided. The position that the Department advocated in this case has been its long-standing position across Administrations and remains the law of nine different Courts of Appeals.”

The case in the 2nd Circuit stems from a years-old lawsuit brought by Donald Zarda, a skydiving instructor who had worked at a company called Altitude Express.

In the summer of 2010, Zarda told a female client who was getting ready for a jump that he was gay and had an “ex-husband to prove it,” court documents show. The client alleged Zarda inappropriately touched her and disclosed his sexual orientation to excuse that; Zarda denied the inappropriate touching and said he made the comment to preempt any discomfort she might feel jumping with him.

He was fired, and sued Altitude Express, claiming his termination was a result of his reference to being gay. Zarda died in 2014, although the case is being carried on by his sister and a former partner.

As the case made its way through court, the legal doctrine over sexual discrimination evolved. In 2015, for example, the Equal Employment Opportunity Commission ruled for the first time that Title VII should cover sexual orientation discrimination. After that, the U.S. Court of Appeals for the 7th Circuit similarly recognized that principle, although the U.S. Court of Appeals for the 11th Circuit did not.

The Justice Department last year came down on the side of those who say sexual discrimination was not covered, and asserted in a court filing that the EEOC was “not speaking for the United States.”

But the 2nd Circuit disagreed. Chief Judge Robert Katzmann, writing for the majority, wrote that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination,” and therefore covered by Title VII.

“To the extent that our prior precedents held otherwise, they are overruled,” Katzmann wrote.

Eight judges joined Katzmann’s opinion, while three filed dissents.

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