MANHATTAN (CN) – Reviving claims over the firing of a gay skydiving instructor, the full Second Circuit ruled 9-3 Monday that sexual orientation is protected by the Title VII ban on sex discrimination.
Part of the Civil Rights Act of 1964, Title VII’s parameters are still being reframed 50 year on as the cause of lesbian, gay, bisexual and transgender rights advances.
Over the past three decades, seven federal appeals courts have distinguished discrimination based on a person’s sex from discrimination based on sexual orientation, and found that Title VII bars the former alone.
As the lead opinion this morning by U.S. Circuit Judge Robert Katzmann states, the thinking went no reasonable person competent in the English language would have understood that a 1964 law banning employment discrimination “because of sex” to also ban discrimination because of sexual orientation.
But to Katzmann and the eight concurring colleagues, the distinction is pure semantics.
An “employer’s failure to reference gender directly does not change the fact that a ‘gay’ employee is simply a man who is attracted to men,” the 69-page lead opinion states.
“For purposes of Title VII, firing a man because he is attracted to men is a decision motivated, at least in part, by sex,” Katzmann continued.
The ruling also emphasizes that “Title VII instructs courts to examine employers’ motives, not merely their choice of words.”
Donald Zarda, the skydiving instructor whose 2010 firing inspired the underlying challenge, died in a 2014 BASE-jumping accident. His attorney, Gregory Antollino with Bergstein & Ullrich, nevertheless celebrated the posthumous victory for his client Monday.
“I’m thrilled,” Antollino said in a phone interview. “I don’t know if I can ever top something like in my career, and I won’t say that I’m entirely surprised because these legal theories had always existed. And the law changes all the time based on a changing society, and we recognize things that we never recognized 10 years ago or 30 years ago.”
Judge Katzmann’s ruling notes that the Second Circuit heard Zarda’s case en banc after a new holding by the Equal Employment Opportunity Commission spurred two sister circuits to revisit the question of whether sexual-orientation-discrimination claims are viable under Title VII.
Though the 11th Circuit maintained the status quo in March 2017, the Seventh Circuit opted in April to expand the definition.
Zarda’s attorney Antollino was critical Monday of the Justice Department for arguing against the expansion in spite of the Equal Employment Opportunity Commission’s re-evaluation.
“I think that was ill-advised on their part to come in against another federal agency that supported us, and I’m obviously happy that we defeated their position,” Antollino said.
While Zarda did not have the Justice Department on his side, New York Attorney General Eric Schneiderman filed a friend-of-the-court brief on the late instructor’s behalf.
“No one should face discrimination because of their sexual orientation – and I am pleased that the Second Circuit has sent a clear statement in support of equal justice today,” Schneiderman said Monday in a statement.
Nearly a decade in the making, today’s ruling turns a corner in the litigation but does not end it. The case will return to a federal court in Brooklyn for further proceedings on the merits.
Saul Zabell, an attorney for defendant Altitude Express, which does business under the name Skydive Long Island, applauded the court’s view of civil-rights law but insisted that Zarda’s case is the wrong vehicle.
“Although we recognize the dire need for this change in the law, the manner in which it was effectuated calls into question the scope of power relative to the branches of government,” Zabel said in a statement
U.S. Circuit Judge Gerard Lynch echoed that sentiment in a dissent.
“Speaking solely as a citizen, I would 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 Title VII of the Civil Rights Act of 1964,” Lynch wrote. “I am confident that one day — and I hope that day comes soon — I will have that pleasure.
“I would be equally pleased to awake to learn that Congress had secretly passed such legislation more than a half century ago — until I actually woke up and realized that I must have been still asleep and dreaming,” Lynch continued. “Because we all know that Congress did no such thing.”
U.S. Circuit Judges Reena Raggi and Debra Ann Livingston filed separate dissents.
Katzmann’s majority opinion was joined in full by Judges Denny Chin, Susan Carney, Peter Hall and Christopher Droney in full. Judges Rosemary Pooler, Dennis Jacobs, Jose Cabranes, Raymond Lohier and Robert Sack joined in part.
Zarda’s case traces its roots to 2010 when the instructor disclosed that he was gay to a female customer before strapping them together for a tandem jump. Though Zarda anticipated that this information would allay any concerns, she apparently took it as a coverup for inappropriate touching. The woman’s boyfriend lodged a complaint that led to Zarda’s dismissal.
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