Circuit Court Rules Title VII Protections Don’t Include Sexual Orientation

Rulings have gone both ways in recent months.

The U.S. Second Circuit Court of Appeals ruled this week that Title VII Protections don’t include sexual orientation in the case of a now deceased gay skydiver who claims he was fired after he disclosed his sexuality to a client.

The three-judge panel released its decision Tuesday in the case of Zarda v. Altitude Express, citing a 2000 ruling that determined that though the Civil Rights Act of 1964 bars workplace discrimination on the basis of sex, the same law doesn’t apply to sexual orientation.

The unanimous ruling concluded that precedent “can only be overturned by the entire Court sitting in banc,” which would require the full court to consider the case, not just the three-judge panel.

Last month, the Second Circuit made a similar ruling in the case of Christiansen v. Omnicom Group, where a different three-judge panel concluded that precedent made it impossible for the court to determine that anti-LGBT bias is illegal. However, in that case, judges did end up ruling in favor of the plaintiff on the basis that the nature of the discrimination he faced was sex stereotyping.

The two decisions stand in contrast to the recent groundbreaking decision made by the U.S. Seventh Circuit Court of Appeals, which determined that anti-LGBT discrimination in the workplace amounts to sex discrimination under the law.

The Second Circuit case was filed by Donald Zarda, an openly gay skydiver who alleged that he was terminated from his position at Altitude Express for telling a client he was gay.

In response, the company said the client had “various complaints” about Zarda’s behavior and that he was fired because he “failed to provide an enjoyable experience for a customer.”

According to the ruling, Zarda died in a skydiving accident before the case went to trial, so two executors of his estate have replaced him as plaintiff.

Although judges in the Christiansen case granted the plaintiff relief on the basis that he suffered discrimination on sex-stereotyping claims, the Second Circuit in the Zarda case determined it couldn’t reach a similar conclusion.

“That route is unavailable to Zarda, since… the district court found that Zarda failed to establish the requisite proximity between his termination and his failure to conform to gender stereotypes, and Zarda did not challenge that determination on appeal,” the decision reads. “Consequently, Zarda may receive a new trial only if Title VII’s prohibition on sex discrimination encompasses discrimination based on sexual orientation — a result foreclosed by Simonton.”

Gregory Antollino, Zarda’s New York-based attorney, told the Washington Blade his legal team intends to file for “en banc” review of the decision before the full Second Circuit.

Last month, the 11th Circuit Court of Appeals ruled against Jameka Evans, an openly gay security guard who claims she was fired from Georgia Regional Hospital because she presents as traditionally masculine. Judges determined that Title VII does not prohibit employers from discriminating on the basis of sexuality.

Texas native with a penchant for strong margaritas, early Babs and tastefully executed side-eye.