Court Rules That Civil Rights Act Applies to Gay Skydiving Instructor

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: May 9, 2018

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Civil RightsAs I blogged about last year, US courts are dealing with a number of cases that address the issue of whether civil rights laws apply when people are allegedly discriminated against based on their sexual orientation.

As I noted, the Seventh Circuit Court of Appeals in Chicago ruled that Title VII of the 1964 Civil Rights Act does protect gay workers from job discrimination.

The Chicago case was brought by Kimberly Hively, a lesbian college professor who claimed that she was passed over for full-time positions and eventually let go based on her sexual orientation.

Now, a federal appeals court in New York has made a similar ruling.

The Second Circuit (which covers Connecticut, New York, and Vermont) ruled in an appeal by a gay skydiving instructor who alleged he was fired after a customer complained about his sexual orientation.

100 Percent Gay

In 2010, Donald Zarda was a skydiving instructor with Altitude Express, a Long Island skydiving company.

Tandem skydiving involves a skydiving instructor strapped to the back of a skydiving student, with the groin area of the instructor pressed up against the posterior of the student.

When Zarda was preparing to take up a woman student, he joked to her boyfriend that he was “100 percent gay.”

According to the New York Times,

Mr. Zarda said he had made the remark to soothe the woman, who seemed uncomfortable with being so tightly strapped to him during the dive.

The boyfriend complained to the school, and Zarda was fired.

Zarda sued, claiming that his firing violated Title VII. Two New York federal courts initially ruled against him.

In 2014, Zarda died in a skydiving accident. However, his appeal continued.

A Sex-Based Consideration

The Equal Employment Opportunity Commission (EEOC), under the Obama administration, issued a ruling that “sexual orientation is inherently a ‘sex-based consideration’” and thus was covered by Title VII.

The Justice Department, under the Trump administration, filed a “friend of the court” (amicus) brief contending that Title VII didn’t cover sexual orientation.

The Justice Department said that the EEOC was “not speaking for the United States” in saying that Title VII did apply. The Justice Department has also stated that it’s up to Congress, and not the courts, to decide what Title VII covers.

According to the majority opinion in the New York case,

Sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.

Supreme Court to Decide?

Contrary to the courts in New York in Chicago, an appellate court in Atlanta concluded that Title VII doesn’t cover discrimination on the basis of sexual orientation.
Because there’s a split between the circuit courts, it seems likely that the issue of whether Title VII covers sexual orientation will need to be addressed by the US Supreme Court, unless Congress acts to clarify the law.

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