A federal appeals court in New York ruled that it is illegal for employers to discriminate against their workers based on sexual orientation. The decision is a blow to the Justice Department under President Trump, which had chosen to wade into a discrimination lawsuit filed by a former New York sky diving instructor. The Justice Department had argued last year that Title VII of the 1964 Civil Rights Act did not cover sexual orientation in the workplace.
The United States Court of Appeals for the Second Circuit becomes the second appeals court to rule that the Civil Rights Law, which prohibits bias in the workplace based on “race, color, religion, sex or national original” should also extend to sexual orientation. An appellate court in Atlanta ruled differently. Jeff Sessions, a Trump appointee, heads the Justice Department and has made his anti-LGBT sentiments no secret.
The Second Circuit ruled 10-3 in the case of Donald Zarda, a sky diving instructor who was fired from Altitude Express in 2010. Zarda had revealed his sexuality to a female client while preparing for a tandem jump as the woman seemed to be uncomfortable with being strapped so tightly to him. Her boyfriend took exception, complaining to the school about the comment, and he was fired. He filed suit on the grounds that Altitude Express violated Title VII and initially had two courts in New York rule against him, including a three-judge panel of the Second Circuit.
Though Zarda died in a 2014 sky diving accident, the appeal advanced with the Equal Employment Opportunity Commission. The finding fsaid that “sexual orientation is inherently a ‘sex-based consideration’” and should be protected by the law.
In July, 2017 the Trump administration decided to get involved in the case. Anti-LGBT Justice Department head Jeff Sessions, filed a friend of the court brief in the Zarda case. The argument was that Title VII protections do not extend to sexual orientation. The move was made coincidentally on the same day Donald Trump Tweeted that he wanted transgender soldiers banned from the military.
In the majority ruling, Chief Judge Robert A. Katzmann wrote, “Since 1964, the legal framework for evaluating Title VII claims has evolved substantially. The opinion said that the law should be read to include sexual orientation. Sexual orientation discrimination is a subset of sex discrimination because 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.”