Federal Court Says Existing Law Covers LGBTQ Workplace Discrimination

LGBTQ courts

Striking down a lower court ruling, the United States Court of Appeals for the Second Circuit ruled today that discrimination based on sexual orientation is unlawful under Title VII of the Civil Rights Act of 1964. The 69-page ruling from the 13 judge en banc panel (ruling 10-3) argued that Donald Zarda – a now-deceased skydiver formerly employed by Altitude Express who was allegedly terminated from his employment for being gay – can sue on the grounds that his termination violates Title VII.

The decision vacates the lower court ruling that found no right to sue under the Civil Rights Act.

History of the Case

When the case first made national attention, Lambda Legal published a brief run down the case:

In September 2010, Zarda, a skydiver, filed a lawsuit in U.S. District Court for the Eastern District of New York against his former employer, Altitude Express, Inc, alleging that the company violated the Civil Rights Act by discriminating against him because of his sexual orientation. The district court rejected his claim, saying that the Civil Rights Act does not protect him for bias he endured for being a gay man. Tragically, in October 2014, Zarda died in a base jumping accident in Switzerland.

In January 2017, Gregory Antollino argued an appeal on behalf of Zarda’s estate asking a three judge panel of the Second Circuit to revisit its precedent and hold that sexual orientation discrimination is a form of sex discrimination and therefore illegal under the Civil Rights Act. The three-judge panel denied Zarda’s claim in April 2017, but held that Zarda would be entitled to a new trial if the full Second Circuit agreed with his arguments about Title VII of the Civil Rights Act.

The Second Circuit has fulfilled that requirement, so that district court must now revisit the case.

In the ruling, written by U.S. Chief Circuit Judge Robert Katzmann, the Second Circuit said, “Zarda has alleged that, by ‘honestly referr[ing] to his sexual orientation,’ he failed to ‘conform to the straight male macho stereotype,’” adding “For this reason, he has alleged a claim of discrimination of the kind we now hold cognizable under Title VII.”

But the ruling is much larger than a singular victory for Zarda’s surviving family.


Prior to the Zarda ruling, two cases heard by the Second Circuit formed precedent in the realm of whether sexual orientation discrimination fell within the scope of the Civil Rights Act:  Simonton v. Runyon (2000) and Dawson v. Bumble & Bumble (2005).

Both cases helped federal courts to deny LGBTQ people equal footing in discrimination cases.

Reporting on the significance of the new precedent, the Washington Blade noted:

In the past year alone, that precedent formed the basis for two rulings from three-judge panels on Second Circuit against the idea of sexual-orientation discrimination is sex discrimination (although in one case, the court ruled in favor of the gay plaintiff anyway based on sex-stereotyping claims). The latest “en banc” ruling means lesbian, gay and bisexual plaintiffs will now unequivocally be able seek relief in the Second Circuit if they face anti-gay workplace discrimination.

The Zarda ruling also dealt a blow to the Trump Department of Justice that – in an unusual move – contradicted the EEOC (who supported Zarda) and filed their own brief siding with the business’ right to legally discriminate on the basis of sexual orientation. We wrote about the brief last year:

Though they had no compelling reason to submit a brief, Trump’s DOJ nonetheless submitted a brief using outdated labels (“homosexuals”) and arguments typically found in far-right conservative amicus briefs popular two decades ago. Here are some of the more suspect sections from the DOJ brief:

Although the Equal Employment Opportunity Commission (EEOC) enforces Title VII against private employers, 42 U.S.C. 2000e-5(f)(1), and it has filed an amicus brief in support of the employee here, the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.

The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination. It does not, as has been settled for decades. Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts.

Title VII prohibits an employer from discriminating against an employee in an interracial relationship, not because that constitutes “associational discrimination” as such, but rather because that constitutes discrimination against the “individual [employee] * * * because of such individual’s race.” 42 U.S.C. 2000e-2(a). In particular, the employer is treating an employee of one race differently from similarly situated employees of the partner’s race, solely because the employer deems the employee’s own race to be either inferior or superior to the partner’s race. For example, in Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008), this Court held that a white employee could bring a claim that he was treated worse for marrying a black woman, as that was discrimination “because of the employee’s own race,” especially in light of evidence that he himself was “insult[ed] * * * in public” as “a [n-word] lover.” Id. at 134, 138-40. By contrast, an employer who discriminates against an employee in a same-sex relationship is not engaged in sex-based treatment of women as inferior to similarly situated men (or vice versa), but rather is engaged in sex-neutral treatment of homosexual men and women alike.

The last section is pertinent for two reasons:

  1. It references disparate treatment in marriage based on race (something covered in Loving v Virginia) to make its case and
  2. It uses the argument the state used in Loving to argue against considering sexual orientation a valid discrimination category.


In the Second Circuit ruling, Judge Katzmann laid out three separate ways in which sexual orientation discrimination is a form of sex discrimination (and therefore qualifies as being in scope for Title VII protection).

The Washington Blade reported:

First, Katzmann sexual orientation “is defined by one’s sex in relation to the sex of those to whom one is attracted,” which makes it impossible to discriminate on the basis of sexual orientation without taking sex into account.

Secondly, Katzmann finds anti-gay bias in based on assumptions and stereotypes about gender, which the U.S. Supreme Court has made clear is an unlawful motive for employment discrimination under existing precedent.

Finally, Katzmann finds anti-gay workplace discrimination is associational discrimination based on sex because the employer is making a judgment about whom an employee should have a relationship.

In the court’s decision, Katzmann said, “Consistent with the nature of sexual orientation, in most contexts where an employer discriminates based on sexual orientation, the employer’s decision is predicated on opposition to romantic association between particular sexes.” He added, “For example, when an employer fires a gay man based on the belief that men should not be attracted to other men, the employer discriminates based on the employee’s own sex.”

From here, Altitude Express could appeal to the Supreme Court (as the full Second Circuit ruled on this case); otherwise, they’ll be forced to adhere to the re-adjudication of the lower court hearing that must take the Second Circuit’s ruling into account.




Tim Peacock is the Managing Editor and founder of Peacock Panache and has worked as a civil rights advocate for over twenty years. During that time he’s worn several hats including leading on campus LGBT advocacy in the University of Missouri campus system, interning with the Colorado Civil Rights Division, and volunteering at advocacy organizations. You can learn more about him at his personal website.


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