‘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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  • manwithnoname

    Yeah, I’ve got an Island for sale in Nevada!

  • MCrow

    Let’s do my favorite activity: flip the situation and see who still agrees.

    If someone was to be fired because they were straight, what would the reaction here be? I’m guessing it would be far from supportive of that decision…

    • Lexical Cannibal

      Obviously not; a straight person isn’t perverting GOD’S plan, while us queers totally are and should be punished by every loosely justifiable means that can be gotten away with.

      It’s what Jesus would do, after all.

    • SFBruce

      How ridiculous. First of all, has anyone, anywhere ever been discriminated against because that person is heterosexual? Secondly, if the current juris prudence is that discrimination based on sexual orientation is disallowed, the person who fires a heterosexual because he or she is straight would be just as liable as the person who fired a gay person. Heterosexuality is a sexual orientation.

      • Regeanvoter

        There is a lot of empirical evidence to support MCrow’s statement. Even now in many of the IT companies and Tech firms, people have been fired for being “openly straight”. Look it up.

        • MCrow

          I’ve found 0 evidence. I found someone fired for being a jerk in a memo, but that’s about it.

          The point is, laws apply equally: if you can legally fire someone for being gay, you can legally fire them for being straight. Neither is right, but people can fail to see that

      • james blue

        I believe the comment was intended to try to encourage empathy

        • MCrow

          It was. I do see how it could be misinterpreted, however

          • james blue

            Given the golden rule it’s amazing how many self proclaimed Christians lack empathy.

          • MCrow

            Well, you’re supposed to love people, right? The simple solution is to stop thinking of certain groups as “human.” Gays, liberals, atheists, agnostics, Buddhists, Muslims, women, the ‘wrong’ kind of Christian, etc. These aren’t people, they’re bogeymen. Easier to not have empathy when they’re worked up to be the devil

          • james blue

            I wasn’t being that complex, Doing unto others as you would have them do to you is the original primer curing a lack of empathy. It would work if it was actually followed.

      • MCrow

        Yes, it is rediculous.

        Just like firing someone for being gay.

    • TheKingOfRhye

      I think a lot of people miss that point. Laws against discrimination based on sexual orientation would protect people of any sexual orientation.

      I mean, I don’t personally know of any instance of someone being fired for being straight, but if sexual orientation isn’t protected by those laws, it would be perfectly legal to do so. So, people who object to this ruling should ask themselves if that’s what they want.

      • MCrow

        I remember a news article a while back of someone being fired for being openly straight at a gay bar. The LGBT community (particularly bar patrons) worked to get him a lawyer

  • Nidalap

    Seems to be standard procedure these days.
    Can’t get the laws you want passed? No problem! Just s-t-r-e-t-c-h existing law so it will cover what you want…

  • calduncan

    I think the word is “devolves.” Progressives have this dogma: If we approve a change, it must be a change for the better.

  • SFBruce

    I haven’t had a chance to read this decision, but why would it be OK to fire or not hire a person simply because he or she is gay? Shouldn’t our access to employment, housing and public accommodations be based on our experience and talent in the case of employment, and ability to pay in the areas of housing and public accommodations? You know, just like straight people live their lives every day.

    • Stefan Gustofsson

      I agree with you but that’s not the typical objection. Some folks view any defense or positive affirmation of homosexuality as evil. They assume that what’s good for homosexuals must be bad for everyone else.

  • Michael C

    The Civil Rights Act’s prohibition on discrimination on the basis of an employee’s sex also applies when an employer discriminates against an employee who doesn’t seem to match gender stereotypes. If an iron worker is harassed and fired because he’s not perceived as being “rugged” and “manly” enough, this is considered sex discrimination (EEOC v. Boh Brothers Construction). If an accounting firm discriminates against a female employee because she acts more like the guys than the ladies, this is considered sex discrimination (Price Waterhouse v. Hopkins).

    Being that it is considered sex discrimination under Title VII when an employee is fired for not behaving in a way that is stereotypically associated with their sex, it follows that if an employee is fired because they have romantic attractions for, or relationships with people of the sex not stereotypically associated with their own, it is also considered to be sex discrimination. That appears to be the judgment of this court, anyway.

  • Regeanvoter

    And this appeals court will also be overturned as their decision is neither based on the law or the Constitution but on pop psychology.

  • Stefan Gustofsson

    I’m not sure I agree but the ruling is not a stretch. Many cultures have characterized homosexuals as a “third gender” of sorts. We often identify homosexuals as “girly men” or “masculine women”. The real legal chaos will begin when medicine finally catches up with the condition and each has the option to select their status.