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2nd Circuit Ruling Strengthens Protections for Lesbian, Gay and Bisexual Workers

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Court rules Title VII bars anti-gay workplace discrimination

A federal appeals court in New York City ruled on February 25, 2018 that employment discrimination based on sexual orientation is unlawful under Title VII. The 2nd Circuit finds Donald Zarda, a now deceased skydiver, who alleged that he was fired from Altitude Express for being gay can sue under existing civil rights law because sexual orientation discrimination is a form of sex discrimination. Zarda also alleged that, by ‘honestly refer[ing] to his sexual orientation,’ he failed to ‘conform to the straight male macho stereotype.”

Chief Circuit Judge Robert Katzmann said that Zarda’s estate is “entitled to bring a Title VII claim for discrimination on sexual orientation.” The Trump administration sent Deputy Assistant Attorney General Hashim Mooppan to the court in September to argue that employers should be able to fire workers for being gay despite Title VII.

Katzmann’s decision articulates three separate ways in which sexual orientation is a subset of sex discrimination.

  1. Sexual orientation “is defined by one’s sex in relation to the sex of those to whom one is attracted,” which makes it impossible to discriminate on the basis of sexual orientation without taking sex into account.

  2. Anti-gay bias is based on assumptions and stereotypes about gender, which the Supreme Court has made clear is an unlawful motive for employment discrimination under existing precedent.

  3. Anti-gay workplace discrimination is associational discrimination based on sex because the employer is making a judgment about whom an employee should have a relationship.

Katzmann writes that “consistent with the nature of sexual orientation, in most contexts where an employer discriminates based on sexual orientation, the employer’s decision is predicated on opposition to romantic association between particular sexes. For example, when an employer fires a gay man based on the belief that men should not be attracted to other men, the employer discriminates based on the employee’s own sex.”

The 2nd Circuit is the second federal appeals court, along with the 7th Circuit, to find anti-gay discrimination unlawful under Title VII. EEOC decided in 2015 that it would accept and ligate cases of anti-gay discrimination under Title VII in the case of Baldwin v. Foxx.

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