With yet another court ruling sexual orientation discrimination unlawful, Supreme Court expected to weigh in

published in McAfee & Taft EmployerLINC | February 27, 2018

By Charlie Plumb

Courts have disagreed on whether an employer discriminating against an employee based upon their sexual orientation violates federal anti-discrimination laws. Yesterday’s ruling by a New York federal appeals court means this issue is bound to be decided by the U.S. Supreme Court.

Firing of gay worker leads to Title VII lawsuit

Donald Zarda worked for Altitude Express as a tandem skydiving instructor. On occasions when he was strapped tightly to female customers, Zarda would sometimes mention to them that he was gay in order to put them at ease. After a male customer complained to Altitude Express that Zarda had touched his girlfriend inappropriately and disclosed to her that he was gay, the employer fired the instructor. Zarda denied any inappropriate touching and sued Altitude Express for firing him because of his sexual orientation. After Zarda later died in a BASE jumping accident, his sister and the co-executor of his estate pursued the lawsuit against Zarda’s former employer.

Another appeals court rules sexual orientation discrimination illegal

On Monday, the federal Second Circuit Court of Appeals decided that employment discrimination based on sexual orientation does violate Title VII of the Civil Rights Act of 1964. The court found that discrimination based upon sexual orientation amounted to sex discrimination and was a form of unlawful gender stereotyping.

Federal courts around the country have reached conflicting conclusions on whether Title VII prohibits employment discrimination based upon sexual orientation or identity. In fact, in the Zarda case two governmental agencies took opposing positions. The Equal Employment Opportunity Commission argued Title VII covered sexual orientation discrimination, while the Department of Justice contended sexual orientation was not protected by the anti-discrimination law. With yesterday’s decision, this question will undoubtedly be decided by the Supreme Court … unless Congress decides to wade in and settle the question through express changes to Title VII’s coverage and language.

  • Zarda et al. v. Altitude Express, dba Skydive Long Island, et al., Case No. 15-3775 (2nd Cir. 2/26/18)