‘Legal Doctrine Evolves’: Appeals Court Rules ‘Sexual Orientation’ Is ‘Subset of Sex Discrimination’

NEW YORK — The Second Circuit Court of Appeals has ruled that so-called “sexual orientation” does apply to Title VII of the 1964 Civil Rights Act, remarking that while the courts have not made the correlation in the past, “legal doctrine evolves.”

“We now conclude that sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination,” Chief Judge Robert Katzmann wrote on behalf of the 10-3 majority. “To the extent that our prior precedents held otherwise, they are overruled.”

Title VII prohibits discrimination based on “race, color, religion, sex or national origin,” and many have interpreted the word “sex” as meaning one’s biological birth sex, not “sexual orientation.” It has been stated that the original intent of including sex in the statute was to prohibit employers from treating female workers differently than male employees.

But it doesn’t end there, claimed the Second Circuit Court of Appeals.

“To determine whether a trait operates as a proxy for sex, we ask whether the employee would have been treated differently ‘but for’ his or her sex,” Katzmann wrote. “In the context of sexual orientation, a woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women.”

“We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.”

Read the ruling in full here.

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As previously reported, the case, Zarda vs. Altitude Express, centered on skydiving instructor Donald Zarda, who was fired by his employer following a complaint from the boyfriend of a female diver.

“Zarda often informed female clients of his sexual orientation—especially when they were accompanied by a husband or boyfriend—to mitigate any awkwardness that might arise from the fact that he was strapped so tightly to the woman,” legal documents outlined.

Altitude Express told Zarda that he was fired because he “failed to provide an enjoyable experience for the customer” as David Kengle, the boyfriend of Rosanna Orellana, complained to the company about Zarda’s remarks.

Zarda sued his employer in 2010 for discrimination, but died in a skydiving accident before the matter went to trial. The executors of his estate decided to keep the case active, but a district court ruled that while the suit may proceed, Title VII of the Civil Rights Act does not apply to homosexuality.

The a three-judge panel of the Second Circuit Court of Appeals agreed, but the case was appealed en banc—or before the full Court of Appeals—which overturned the ruling on Monday.

The U.S. Department of Justice had filed an amicus brief last July arguing that Title VII does not pertain to homosexuality and that the matter “has been settled for decades.”

“The essential element of sex discrimination under Title VII is that employees of one sex must be treated worse that similarly situated employees of the other sex, and sexual orientation discrimination simply does not have that effect,” the Department of Justice contended.

The case could now be appealed to the U.S. Supreme Court.


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