A federal appeals court ruled Monday that a provision of the 1964 Civil Rights Act banning workplace discrimination on the basis of sex also prohibits anti-gay discrimination. The court’s decision marks a blow to the Trump administration’s efforts to roll back protections for LGBT communities.
The case began in 2010, when a Long Island sky-diving instructor named Donald Zarda filed a lawsuit against his employer, Altitude Express, Inc., alleging that the company fired him because of his sexual orientation. Zarda’s lawyers argued that the sky-diving school violated Title VII of the Civil Rights Act.
Title VII explicitly bans employers from discriminating against employees on the basis of “race, color, religion, sex or national origin.” Courts have long held that “sex” discrimination included discrimination based on biological sex or failure to conform to gender stereotypes. Lawyers with the Equal Employment Opportunity Commission, the federal agency that handles civil rights disputes in the workplace, sided with Zarda and argued before the Second Circuit Court of Appeals that gay employees should be protected under the same law because they face gender-based discrimination—chiefly the stereotype that one sex should be attracted to the opposite sex.
The Department of Justice, however, filed an unsolicited amicus brief in the case in July, stating that Title VII did not cover anti-gay discrimination and that the EEOC was “not speaking for the United States.” A Second Circuit judge called the situation a “little awkward,” as lawyers for the federal agencies sparred in court in September.
Zarda died in 2014, but his sister and a close friend have continued the lawsuit in his name. Any appeal will go directly to the Supreme Court, which declined to hear a similar case in December.
