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Title VII Bars Sexual Orientation Discrimination, Says US Second Circuit Court of Appeals

Monday, February 26, 2018

Title VII Bars Sexual Orientation Discrimination, Says US Second Circuit Court of Appeals

"Last spring, we reported that the Seventh Circuit Court of Appeals (which hears appeals from Illinois, Indiana, and Wisconsin federal trial courts) had become the first federal appellate court to conclude that Title VII’s sex discrimination prohibition also precludes discrimination based on sexual orientation. On February 26, 2018, the Second Circuit Court of Appeals, ruling en banc, became the second appellate court to hold that Title VII bars discrimination based on sexual orientation, explicitly reversing prior Circuit authority to the contrary.

In Zarda v. Altitude Express, a former tandem skydiving instructor alleged he was fired after a customer and her boyfriend complained following his disclosure to her that he was gay. (His estate pursued the case after he died in a base-jumping incident.) Numerous employers representing a diverse range of business interests – from finance to technology to telecommunications – along with legal aid, civil and gay rights organizations, and labor unions, supported the claimant’s estate in the appeal, arguing as friends of the court that sexual orientation discrimination is opprobrious to business interests and civil rights. The Trump administration, on the other hand, weighed in (through the Department of Justice) that Title VII was not intended to provide protections to gay workers, thus rejecting the Obama administration’s policy (and an Obama-era EEOC decision holding) that sex discrimination includes sexual orientation discrimination. (In an interesting twist, the EEOC filed an amicus brief at the court’s request arguing that sexual orientation is inextricably linked to gender, thus creating a split even within Trump-administration agencies on the contours of sexual orientation discrimination.)..."

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