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2nd Federal Appeals Court Rules LGBT Workers Protected Against Employment Discrimination
Court: rules Title VII covers sexual-orientation bias
2018-02-26

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On Feb. 26, a U.S. appeals court in New York City ruled that a federal law banning sex discrimination in the workplace—Title VII of the Civil Rights Act of 1964—also prohibits bias against gay and lesbian employees.

The 2nd U.S. Circuit Court of Appeals overruled previous decisions, stating that a worker's gender is necessarily a factor in discrimination based on sexual orientation. In so doing, the court gave life to Zarda v. Altitude Express, Inc.—a lawsuit brought by the estate of Donald Zarda, a former skydiving instructor who said he was fired after he told a customer he was gay.

Ria Tabacco Mar, a staff attorney with the American Civil Liberties Union's LGBT & HIV Project, said in a statement, "Today's decision is a victory for lesbian, gay, and bisexual workers across the country. There have now been two federal appeals courts to recognize what we've always known—that discrimination based on sexual orientation is in fact discrimination, and that there is no room for it in the workplace.

"This decision is also a repudiation of the Trump administration's Justice Department, which has insisted that LGBT discrimination is acceptable under federal law."

From a Lambda Legal press release:

( New York, NY, February 26, 2018 ) —Today, in a 10-3 decision, the full Second Circuit Court of Appeals ruled that discrimination on the basis of sexual orientation violates the Civil Rights Act of 1964, the federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin and religion. Today's ruling comes in the case of the late Donald Zarda, a New York skydiving instructor who was fired from his job because he was gay. Lambda Legal filed a friend-of-the-court brief in support of Zarda's estate and argued the case before the Second Circuit. The Second Circuit ruling is the latest in a trend of rulings clarifying that Title VII of the Civil Rights Act covers adverse treatment that takes an employee's gender into account, including firing men, but not women, for the same thing: being romantically attracted to men.

"Today's opinion is a huge victory in the fight for equality and fairness for all LGBT workers," said Greg Nevins, Director of Lambda Legal's Employment Fairness Project. "At Lambda Legal's urging, another federal court of appeals has recognized that federal law protects LGBT people from discrimination because denying someone the right to a job because they are attracted to someone of the same sex is a form of sex discrimination, plain and simple. We will continue pushing this issue until every LGBT person in this country benefits from the protection that our federal law provides by its plain terms against discrimination because of a person's sex, including their sexual orientation."

In the opinion filed today, Chief Judge Katzmann writes:

"Although sexual orientation discrimination is "assuredly not the principal evil that Congress was concerned with when it enacted Title VII," "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils." Oncale, 523 U.S. at 80. In the context of Title VII, the statutory prohibition extends to all discrimination "because of . . . sex" and sexual orientation discrimination is an actionable subset of sex discrimination. We overturn our prior precedents to the contrary to the extent they conflict with this ruling."

In April, in a landmark decision in a Lambda Legal case, the full Seventh Circuit Court of Appeals ruled in favor of Kim Hively, a math instructor in Indiana who was fired for being a lesbian.

Lambda Legal's involvement in this case, as well as Hively v. Ivy Tech and Evans v. Georgia Regional Hospital, is a part of a national effort to establish and enforce employment discrimination protection for all LGBT people and everyone living with HIV. In addition to the sexual orientation cases, these efforts include an historic win for transgender workplace rights in Glenn v. Brumby and the current lawsuit Karnoski v. Trump challenging the ban on transgender troops. Lambda Legal also launched Out at Work, a campaign to support Jameka Evans in her pursuit for justice, bring awareness to LGBT people everywhere of their Title VII rights, and assert that all people have the right to a job with dignity, free from repercussions for who they are or whom they love.

Gregory R. Nevins, Sharon McGowan, and Omar Gonzalez-Pagan are the attorneys for Lambda Legal in this matter. They are joined by Attorney Michael D.B. Kavey.

Read the Second Circuit Court of Appeals opinion here: www.lambdalegal.org/in-court/legal-docs/ny_zarda_20180226_opinion .

More information about Lambda Legal's work on employment protections is available here:www.lambdalegal.org/issues/employment-and-rights-in-the-workplace .

Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and everyone living with HIV through impact litigation, education and policy work.

From a Freedom for All Americans press release:

NEW YORK — Today the en banc 2nd Circuit Court of Appeals in New York ruled in Zarda vs. Altitude Express that employment discrimination based on sexual orientation is illegal under Title VII of the Civil Rights Act of 1964, overturning the circuit's 17-year-old exclusionary legal precedent and contributing to a national trend of court rulings in favor of LGBTQ nondiscrimination protections.

The case concerned a man, Don Zarda, who was fired from his job as a skydiving instructor because of his sexual orientation. The 2nd Circuit has jurisdiction over New York, Connecticut, and Vermont.

"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," said Masen Davis, CEO of Freedom for All Americans. "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."

Oral argument took place in September in front of the full en banc court — a rare phenomenon that has taken place only a handful of times in the last decade, and a strong indicator of the case's significance. The Equal Employment Opportunity Commission ( the federal agency that oversees discrimination complaints ) and the Department of Justice opposed each other in court in a rare split between two federal agencies over the same issue, proving the federal government a house divided on LGBTQ rights.

"Today's victory is a wonderful step forward for the country as a growing number of Americans take a stand against anti-LGBTQ employment discrimination," said Bill Moore, loved one of the plaintiff and co-executor of his estate. "I wish Don were here to see how he and his case have advanced the movement for LGBTQ equality. I know that he would be humbled to know that bringing his story forward has helped improve the lives of countless Americans who face discrimination at work because of their sexual orientation."

Last April, the en banc 7th Circuit Court of Appeals issued a groundbreaking decision in a case brought forth by Lambda Legal in favor of Kimberly Hively, who was fired from her job as a teacher because she is a lesbian; and held that employment discrimination based on sexual orientation is illegal under Title VII, which prohibits discrimination in employment based on sex — the first time a federal appellate court has ever reached this conclusion. Meanwhile, the 11th Circuit ruled the opposite way in a 2-1 decision in Evans v. Georgia Regional Hospital, which concerned a Savannah security guard who was harassed at work and forced from her job because of her sexual orientation.

"When Don passed away before being able to see a resolution in his legal case, I knew that the best way I could honor my brother was by continuing the case," said Melissa Zarda, sister of the plaintiff and co-executor of his estate. "Today my family and I feel vindicated by this historic, landmark ruling from the 2nd Circuit Court of Appeals. Don valued fairness and justice above all else. To right a wrong would have meant the world to him, and by bringing his case forward, his legacy will be to right countless wrongs endured by Americans who face employment discrimination based on their sexual orientation."

Freedom for All Americans provided ongoing communications and digital support to the private attorney leading the case. In addition, FFAA helped recruit a record 50 businesses representing more than 370,000 employees last year who filed a friend-of-the-court brief in support of the plaintiff, marking the first time that businesses have explicitly taken the legal position that discrimination in employment based on sexual orientation is illegal under Title VII.

Don Zarda passed away in 2015, but Bill and Melissa, the co-executors of his estate, continued the lawsuit on his behalf. To request an interview with loved ones of the plaintiff, contact adallara@freedomforallamericans.org .


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