Metro Weekly

2nd Circuit decides Title VII prohibits anti-gay employment discrimination

Court overrules its prior precedent in 10-3 decision ruling in favor of a deceased skydiving instructor's estate

Donald Zarda – Photo: Donald Zarda Memorial, via Facebook.

On Monday, in a momentous 10-3 decision, the New York-based 2nd U.S. Circuit Court of Appeals decided that Title VII of the Civil Rights Act prohibits workplace discrimination based on a person’s sexual orientation.

The court determined that the late Donald Zarda, a former skydiving instructor for Altitude Express, Inc., was unfairly fired after he told a customer he was gay and she complained to management. Zarda sued for discrimination, but died in a BASE-jumping accident after the lawsuit was filed.

In Zarda’s case, both the district court and the 2nd Circuit initially ruled against Zarda’s estate, but Zarda’s lawyer, Gregory Antollino, appealed the ruling and requested a full rehearing of the case by all sitting members of the circuit.

The decision marks the second time a federal appellate court has ruled that gay, lesbian, and bisexual people are protected under the statute, which is intended to prohibit discrimination based on sex, reports Reuters.

Various federal courts have recently grappled with whether the definition of “sex” only applies to a person’s biological sex as assigned at birth, or whether it also protects instances where a person is discriminated against because of their sexual orientation or because of their failure to adhere to traditional sex stereotypes.

Last year, the Chicago-based 7th U.S. Circuit Court of Appeals determined that a community college had violated Title VII when it refused a lesbian adjunct professor a promotion after her superiors found out she was dating a woman.

However, the 11th Circuit Court of Appeals upheld a lower court decision throwing out a lesbian security guard’s employment discrimination lawsuit. Upon appeal, the 11th Circuit refused to grant a rehearing by all sitting judges on the circuit.

Subsequently, the U.S. Supreme Court declined to hear the case — even though there was already a “split” between the 7th Circuit and 11th Circuit in how courts have decided to interpret the law.

In the case out of the 2nd Circuit, the full court revisited and overturned prior precedent that said Title VII was not to be interpreted as protecting LGB workers. Now, the court finds that a worker’s sex is necessarily a factor in discrimination based on sexual orientation, thus making Title VII’s protections for “discrimination based on sex” applicable.


The Trump administration had previously weighed in on the Zarda case, arguing that Title VII was only intended to protect against discrimination in cases where a person is unfairly treated because of their biological sex at birth. But the full 2nd Circuit disagreed with that interpretation.

“We now conclude that sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination,” the majority opinion reads. “Looking first to the text of Title VII, the most natural reading of the statute’s prohibition on discrimination “because of…sex” is that it extends to sexual orientation discrimination because sex is necessarily a factor in sexual orientation.

“This statutory reading is reinforced by considering the question from the perspective of sex stereotyping, because sexual orientation discrimination is predicated on assumptions about how persons of a certain sex can or should be, which is an impermissible basis for adverse employment actions. In addition, looking at the question from the perspective of associational discrimination, sexual orientation discrimination — which is motivated by an employer’s opposition to romantic association between particular sexes — is discrimination based on the employee’s own sex.”

LGBTQ groups hailed the ruling as a significant step towards their eventual goal of enshrining workplace protections for LGB workers in federal law. 

“Today’s ruling is the latest victory affirming that employees should be evaluated only on their work ethic and job performance — not on who they are or who they love,” Masen Davis, the CEO of Freedom for All Americans, said in a statement. “Courts across America are increasingly in agreement that who a person loves has no impact on what they produce in the workplace, and no one should be singled out because of their sexual orientation.”

Sarah Kate Ellis, the president and CEO of GLAAD, called the decision a “significant rejection of the Trump Administration’s ongoing campaign to strip rights and protections away from” LGBTQ workers.

“This strong affirmation that sexual orientation is protected under Title VII is a vital step forward, but it is imperative to continue to fight for the courts to affirm gender identity is also protected by denying the Trump Administration attempts to block the transgender community from having standing under the language of sex discrimination,” Ellis noted.

“Today’s opinion is a huge victory in the fight for equality and fairness for all LGBT workers,” Greg Nevins, the director of Lambda Legal’s Employment Fairness Project, said in a statement. “At Lambda Legal’s urging, another federal court of appeals has recognized that federal law protects LGBT people from discrimination because denying someone the right to a job because they are attracted to someone of the same sex is a form of sex discrimination, plain and simple. We will continue pushing this issue until every LGBT person in this country benefits from the protection that our federal law provides by its plain terms against discrimination because of a person’s sex, including their sexual orientation.”

Support Metro Weekly’s Journalism

These are challenging times for news organizations. And yet it’s crucial we stay active and provide vital resources and information to both our local readers and the world. So won’t you please take a moment and consider supporting Metro Weekly with a membership? For as little as $5 a month, you can help ensure Metro Weekly magazine and remain free, viable resources as we provide the best, most diverse, culturally-resonant LGBTQ coverage in both the D.C. region and around the world. Memberships come with exclusive perks and discounts, your own personal digital delivery of each week’s magazine (and an archive), access to our Member's Lounge when it launches this fall, and exclusive members-only items like Metro Weekly Membership Mugs and Tote Bags! Check out all our membership levels here and please join us today!