Donald Zarda – Photo: Donald Zarda Memorial, via Facebook.
On Tuesday, the 2nd U.S. Circuit Court of Appeals heard the case of a deceased skydiver who had sued his former employer for firing him because he was gay, alleging that the action violated his rights under Title VII of the Civil Rights Act.
Arguing on behalf of fired skydiver Donald Zarda’s estate, Lambda Legal argued that the 2nd Circuit re-examine two of its precedents and find that discrimination based on sexual orientation is necessarily discrimination based on sex, which is prohibited under Title VII.
LGBTQ advocates have an ally in the Equal Employment Opportunity Commission, which has adopted the interpretation that Title VII’s protections should apply to LGBTQ people. On the other side, the U.S. Department of Justice argued that Title VII only applies to cases where a person is discriminated against because of their biological sex as assigned at birth.
“No one should be fired, forced from their job, or passed over for promotions because they are lesbian, gay, or bisexual. The Second Circuit can help fix this,” Greg Nevins, director of Lambda Legal’s Employment Fairness Project, said in a statement. “We are hopeful that the Second Circuit takes this rare opportunity to rehear this case and correct and clarify its outdated precedents.”
Several federal courts, including the 7th Circuit, have found employers cannot discriminate against employees for not adhering to gender stereotypes about who men and women should be attracted to, date, or marry. The 7th Circuit also found little difference between discrimination based on such stereotypes and discrimination based on sexual orientation.
Regardless of the court’s decision in the Zarda case, it is likely to be appealed to the U.S. Supreme Court. The court is already expected to take up a case dealing with Title VII, whether it’s the 11th Circuit’s decision to not to rehear the case of a Georgia security guard who claims she was discriminated against because she was a lesbian who was gender-nonconforming, or the 7th Circuit’s decision in favor of a lesbian adjunct professor at Ivy Tech Community College in Indiana who was denied promotions and permanent position after her supervisor found out she had a girlfriend.
“With circuit courts already split, and different federal agencies weighing in on opposite sides, today’s argument for Donald Zarda might well have been a dress rehearsal for the Supreme Court argument for Jameka Evans,” Lambda Legal CEO Rachel Tiven said in a statement, referring to the 11th Circuit case currently being appealed to the nation’s highest court.
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