Victory! Huge Win for LGBTQ Employment Non-Discrimination at the 2nd Circuit Court of Appeals

By Shane Stahl • February 26, 2018 • 10:10 am

Today, February 26, the 2nd Circuit Court of Appeals, which has jurisdiction over New York, Connecticut, and Vermont, defied opponents of equality and delivered a big win for the LGBTQ community and the principles of non-discrimination. In a decisive en banc decision, the judges officially recognized that discrimination based on sexual orientation constitutes “sex discrimination” under Title VII of the Civil Rights Act of 1964. The case was brought forward by private attorney Gregory Antollino.

Read the decision here.

In April 2017 the 7th Circuit Court of Appeals issued the first such en banc ruling in favor of Kimberly Hively, a math teacher who was fired from her job in Indiana because she was seen kissing her girlfriend. In its 8-3 ruling on the case, brought forward by Lambda Legal, the court stated that discrimination based on sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964. This was the very first time a federal appellate court reached this conclusion, and today marks the second. Separately, three federal appellate courts (the 6th Circuit, 7th Circuit, and the 11th Circuit) have ruled that discrimination based on gender identity constitutes sex discrimination under federal law (Title VII and Title IX of the Education Amendments), with positive case law also on the side of transgender Americans in the 1st, 8th, and 9th Circuits. Read more on Where We Stand in the Courts here.

Our CEO Masen Davis celebrated today’s decision in a statement released just moments ago:

“Today’s ruling is the latest victory affirming that employees should be evaluated only on their work ethic and job performance – not on who they are or who they love. Courts across America are increasingly in agreement that who a person loves has no impact on what they produce in the workplace, and no one should be singled out because of their sexual orientation. Freedom for All Americans is proud to stand shoulder-to-shoulder with the attorney and legal organizations that made today’s win possible. Momentum is on our side, but we must continue doing the work of winning in both the courts and state legislatures. Our job isn’t done until the patchwork of different state laws is ended and all people are uniformly protected from discrimination, no matter what zip code they call home.”

Background on Zarda v. Altitude Express

The case, Zarda v. Altitude Express, centered on plaintiff Don Zarda, a skydiving instructor who was fired for being gay. Don was fired from his job after disclosing to a female customer that he is gay in an effort to appease her potential discomfort over close contact during a tandem skydive. When the customer’s boyfriend complained to his employer, Altitude Express Inc. in Long Island, NY, the company subsequently reprimanded Zarda for sharing “personal information” about his “escapades” – a condescending allusion to a common gay stereotype.

In 2010, the plaintiff sued under the New York Human Rights Law, which explicitly prohibits discrimination based on sexual orientation, and under Title VII of the Civil Rights Act of 1964. The en banc decision means every judge on the court heard the case, a rare occurrence that only takes place a handful of times each year. Today marks only the second time a federal appellate court has ruled that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation.

Sadly, Don passed away several years ago, but his lawsuit was carried on by his estate, managed by sister Melissa Zarda and former partner Bill Moore.

“Don wanted to fly – his life mission was to be in the air,” Bill Moore told FFAA in an extensive interview about Don’s passion and commitment to doing his job well. “He always wanted to be a pilot, he always wanted to be in the air, and so it was no surprise that when he started skydiving as a hobby, he got addicted to the adrenaline.”

“He was so obsessive-compulsive,” Bill told Freedom for All Americans. “He would quadruple-check everything on every skydiving jump he did – every hook, every strap, every last thing about the parachute. He worked at many different companies at many different drop zones for many years. If you were going to jump on a skydive with anyone, you would want it to be with him.”

Melissa’s goals for the case are clear. “I want the Civil Rights Act of 1964 to include gay people. That law was meant to prevent discrimination – period. I couldn’t even believe it that LGBT people were not protected at the federal level – I was blown away. I just assumed that our country already afforded these basic protections to people.”

“Continuing this case was the only way I could honor my brother,” Melissa said. “It was so important to him and it would have meant everything to him. Fair is fair – and that’s why Don was so upset about being fired just for his sexual orientation. He wanted everything to be just – and that sounds obvious, but it’s true. To right a wrong would have meant the world to him.”

Freedom for all Americans has been proud to support communications and digital work over the past several months in this case. We are grateful for the legal prowess and advocacy of attorney Gregory Antollino, who has worked on the case for several years now, and Lambda Legal, who provided additional argument in September 2017.

“I want the Civil Rights Act of 1964 to include gay people. That law was meant to prevent discrimination – period.

In June 2017 FFAA recruited 50 businesses representing more than 370,000 employees to file a friend-of-the-court brief in support of the plaintiff. It marked the first time that businesses explicitly took the legal position that discrimination in employment based on sexual orientation violates Title VII. The list of signers includes Google, Microsoft, Viacom, Spotify, CBS, Ben & Jerry’s, Levi Strauss & Co., and more.

The Broader Context

This victory is especially significant for the national landscape of LGBTQ nondiscrimination protections because it changes the precedent for the entire 2nd Circuit. In recent years, several three-judge panels in the 2nd Circuit have considered cases around the question of how title Title VII applies to sexual orientation-based discrimination. In each of the rulings, the 2nd Circuit panels have deferred to existing legal precedent, set in 2000 in Simonton v. Runyon. An en banc hearing was one of the few ways to overturn that precedent.

“Continuing this case was the only way I could honor my brother.”

Earlier this year, 2nd Circuit Chief Judge Robert Katzmann stated in a similar case, seemingly reluctantly, that the Simonton decision bound him to rule against a plaintiff who faced severe anti-gay harassment and discrimination at work. However, in a concurrence, he and another judge indicated that they thought the full court should reconsider this question and reverse the precedent. Judge Katzmann wrote: “I respectfully think that in the context of an appropriate case our Court should consider reexamining the holding that sexual orientation discrimination claims are not cognizable under Title VII. Other federal courts are also grappling with this question, and it well may be that the Supreme Court will ultimately address it.”

The Trump administration has been similarly conflicted, with its Department of Justice at odds with the Equal Employment Opportunity Commission, the federal agency that oversees discrimination complaints in the workplace.

Last summer, without any prompting by the court, the DOJ took the shocking step of filing an amicus brief in Zarda urging the 2nd Circuit to rule that federal law banning discrimination based on “sex” is not inclusive of discrimination based on sexual orientation. This directly contradicted the prior position of the EEOC, which argued in person before the 2nd Circuit that Zarda’s termination violated Title VII.

Across the country, the legal consensus is building that no one should face discrimination because of who they are or who they love – and public opinion is on our side. We are excited and grateful to see courts from coast to coast recognizing that discrimination based on LGBTQ identity violates federal law, and we’re hopeful that states and municipalities will continue to pass even more explicit and express protections for LGBTQ people. People should be evaluated on their hard work and commitment – not discriminated against based on their sexual orientation or gender identity. That’s the consensus that’s building, and that’s the imperative that we are proud to push along every day.


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