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MARCH 2018 - Sexual Orientation Discrimination
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Sexual Orientation Discrimination is Illegal

by Susan Yu

 

2018 marks the start (or a long-overdue start) of recognizing and extending civil rights protection to all persons, regardless of his/her sexual orientation.  Finding that sexual orientation discrimination is illegal, on February 26, 2018, a Second Circuit Federal Court of Appeals in New York in Zarda v. Altitude Express, Inc. et al.,  ruled, en banc (10-3),  that a federal civil rights law under Title VII, which bans sex discrimination and bias in the workplace, extends to gay employees.

The Zarda case was based on a 2010 lawsuit brought by Donald Zarda, a gay skydiving instructor who was fired by his employer after a customer complained that Zarda disclosed his sexual orientation during a jump with a female skydiver.   Zarda’s wrongful termination claim centered on whether sexual orientation was protected under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on “race, color, religion, sex, or national origin.”   The trial court granted the employer’s summary judgment motion and dismissed Zarda’s case, finding that sexual orientation was not covered under Title VII.  Shortly after the summary motion judgment, and before trial, Zarda died in an accident.   His estate took over the lawsuit and appealed to the Second Circuit Court of Appeal.  However, the Second Circuit rejected Zarda’s appeal, finding a distinction between sex and sexual orientation.

Then, in a rare move, the full panel of 13 federal judges in the Second Circuit agreed to review the issue of whether Title VII’s prohibition on sex discrimination in the workplace also covered sexual-orientation discrimination.  In its 10-3 ruling, the Second Circuit stated that sexual-orientation discrimination is a form of sex discrimination and that “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 judges also found that sexual-orientation discrimination is rooted in assumptions about how people of a certain sex should behave, a form of illegal gender stereotyping under federal law.  In his 74-page dissent, Judge Gerard Lynch, a Barack Obama appointee, said it should fall to Congress to expand the protections in Title VII, not the courts. “When 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,” he wrote.  Regardless, the Zarda case is a victory for the LGBT member because the issue of gay rights has split the courts across the country for a long time.

Indeed, the Zarda decision follows a Seventh Circuit Court of Appeals’ 2017 landmark decision in Hively v. Ivy Tech, in which the bipartisan group of judges ruled (8-3) that Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination in the workplace.  Zarda and Hively are paving the way for the LGBT community to have its voice heard in the United States Supreme Court, particularly in light of the Alabama Federal Court’s refusal to recognize the LGBT’s civil rights.  That case did not make it to the U.S. Supreme Court, but one day the United States Supreme Court may very likely review this issue to resolve the conflict among the Circuits.  And if at least five justices agree with the Zarda and Hively Courts, their decision will effectively outlaw anti-gay employment discrimination in all 50 states.

Aside from employment discrimination or sex discrimination in the workplace, another question the courts have grappled with is whether private businesses can deny services to gay customers for religious reasons.  In December 2017, the U.S. Supreme Court heard a case focused on a baker in Colorado who, because of his religion (i.e., Christian faith), refused to make a wedding cake for a same-sex couple.  The U.S. Supreme Court is expected to rule later this year, a ruling that will pit religious freedom against anti-discrimination laws.

Susan Yu is the WLALA Career Mentoring Committee Co-Chair.  Susan Yu is Principal at Susan Yu Law Group, APC.