Another circuit rules anti-gay bias is illegal

In a groundbreaking decision, the 2nd Circuit Court of Appeals has ruled that the Title VII provision that prohibits sex discrimination also makes it illegal for employers to discriminate against gay employees.

The decision came after an unusual interagency courtroom showdown. On one side, lawyers from the EEOC argued that under Title VII, employers may not discriminate against employees based on their sexual orientation. Department of Justice lawyers argued that Title VII says nothing at all about sexual orientation, so discrimination on that basis cannot be against the law.

All 13 2nd Circuit judges were involved in the decision—and 10 of them agreed with the EEOC’s position that sexual orientation discrimination is sex discrimination.

Recent case: Donald, who is gay, was a skydiving instructor. Before one tandem jump, he told a female student to whom he was strapped that he was “100% gay.” Donald said he made the statement because the woman seemed uncomfortable with the close front-to-back physical contact involved in a tandem jump.

The customer later mentioned the comment to her boyfriend, who complained to the skydiving school. It fired Donald and he filed an EEOC complaint.

The EEOC sued on Donald’s behalf, using the case as a test of its new policy that considers sexual orientation discrimination a violation of the sex discrimination provisions written into Title VII.

The case eventually ended up before the full 2nd Circuit Court of Appeals, which sided with the EEOC. In doing so, the court overturned its prior position that sexual orientation discrimination is not sex discrimination. (Zarda v Altitude Express, 2nd Cir., 2018)

What’s next: For now, employers in the 2nd Circuit—it covers Connecticut, New York and Vermont—must make sure they do not discriminate based on sexual orientation, as must employers in the 7th Circuit (Illinois, Indiana, Wisconsin), which reached the same conclusion 2017.

However, the 11th Circuit (Alabama, Florida, Georgia) has ruled that Title VII does not cover sexual orientation discrimination. In that case, the employee tried to appeal to the Supreme Court, which refused to take the case.