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Law banning sex discrimination also covers sexual orientation, panel rules

The case centered on the firing of Donald

The case centered on the firing of Donald Zarda, a now-deceased gay skydiving instructor. Credit: Donald Zarda via Facebook

A divided Second U.S. Circuit Court of Appeals in Manhattan on Monday ruled the federal law banning sex discrimination in employment covers sexual orientation, siding in the milestone ruling with the estate of a gay parachute instructor who sued a Long Island company.

The ruling set up a potential Supreme Court test on an issue that divided the Equal Employment Opportunity Commission, which argued the discrimination ban extended to gays, from the Justice Department, which said the law’s plain language was limited to gender-based discrimination.

“Sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination,” the court said. “ . . . The employer’s failure to reference gender directly does not change the fact that a ‘gay’ employee is simply a man who is attracted to men. Firing a man because he is attracted to men is a decision motivated, at least in part, by sex.”

Three dissenters, however, disputed the nine-person majority’s finding that Congress covered sexual orientation when it banned discrimination “because of sex” in Title VII of the 1964 Civil Rights Act, noting that since then, Congress had not acted on 50 proposed bills to explicitly cover sexual orientation.

“The problem sought to be remedied by adding ‘sex’ to the prohibited bases of employment discrimination was the pervasive discrimination against women in the employment market,” wrote Judge Gerard Lynch. “ . . . Congress is permitted to choose what types of social problems to attack and by which means.”

The case was brought by Donald Zarda, a now-deceased gay skydiving instructor fired in 2010, who sued Altitude Express, also known as Skydive Long Island in Calverton, and Ray Maynard of Southampton, the owner.

Zarda was fired when a female customer complained about parachuting with Zarda after he had told her he was gay. U.S. District Judge Joseph Bianco in Central Islip and a three-judge Second Circuit panel previously ruled against Zarda’s estate, and a jury rejected a state discrimination claim.

Zarda’s sister, Melissa, said he would have been “overjoyed” at the result.

“It was so important to right the wrongs for all of the Americans who have faced unequal treatment at the workplace,” she said. “Helping set a precedent would have meant a lot to him.”

The EEOC changed its position on coverage of sexual orientation in 2015, but until Monday, only one federal appeals court had gone along. The opinion by the influential Second Circuit could trigger Supreme Court consideration of whether to overturn precedents, but it wasn’t clear there would be an appeal.

Saul Zabell, the Bohemia lawyer for the skydiving company, emphasized in a statement that his clients agreed that gays should be protected against discrimination and praised the Second Circuit result, but complained that the courts stepped into Congress’ turf.

“Although we recognize the dire need for this change in the law, the manner in which it was effectuated calls into question the scope of power relative to the branches of government,” Zabell said.

Typically, the EEOC sets policy on employment discrimination. The Justice Department’s entry into the case last year on the other side triggered conflict between the administration and gay rights groups and corporate and political supporters, who filed friend of the court briefs.

While they praised the outcome, the Justice Department echoed the dissent. “We remain committed to the fundamental principle that the courts cannot expand the law beyond what Congress has provided,” a spokesman said.

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