Appeals Court Backs Gay Employees’ Right to Sue

A federal appeals court in New York City ruled Monday that gay employees are allowed to sue their employers for discrimination under federal civil-rights law, a significant ruling on an issue that has split courts across the country and could be headed for the Supreme Court.

The decision by the Second U.S. Circuit Court of Appeals follows a similar ruling last April by appeals judges in Chicago. After a federal appeals court in Atlanta ruled the opposite way last year, the plaintiffs in that case appealed to the Supreme Court, which declined the petition.

The divided appeals rulings make it more likely the Supreme Court will take up the issue.

Whether antidiscrimination laws protect employees from being fired for sexual orientation has become one of the most contentious legal battles around the issue of gay rights in the nearly three years since the Supreme Court legalized same-sex marriage nationwide.

The case in New York focuses on a 2010 lawsuit brought by Donald Zarda, a gay skydiving instructor who alleged he was fired by his employer after a customer complained about Mr. Zarda’s disclosure of his sexual orientation during a jump with a female skydiver. Mr. Zarda died in 2015.

One of Mr. Zarda’s claims was that his employer had violated Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on “race, color, religion, sex, or national origin.”

The question that has divided courts is whether the law’s prohibition on sex discrimination in the workplace also covers sexual-orientation discrimination.

A lower court originally dismissed Mr. Zarda’s case, and the 2nd Circuit rejected his appeal, finding a distinction between sex and sexual orientation. The full panel of 2nd Circuit judges then agreed, in a rare move, to review the issue.

In the 10-3 ruling, the Second Circuit appeals court said sexual-orientation discrimination is a form of sex discrimination, writing that “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.”

The judges also found that sexual-orientation discrimination is rooted in assumptions about how people of a certain sex should behave, a form of illegal gender stereotyping under federal law.

Gay-rights groups cheered the ruling, saying it builds momentum to their longstanding push to protect gay employees from discrimination in the workplace.

A 2014 photo of Donald Zarda taken in Mineola, Texas. Photo: Melissa Zarda/Associated Press

Melissa Zarda, the plaintiff’s sister and co-executor of his estate, said her family feels “vindicated by this historic, landmark ruling.”

Saul Zabell, a lawyer for the company that fired Mr. Zarda, said the judges “exceeded their judicial mandate” and “chose to ignore the facts of the underlying matter.” But he also said there was a dire need for this change in the law and praised the judges “for curing this glaring legislative gap in fundamental human rights.”

The oral argument in the case was unusual because two government agencies took opposite sides of the issue. The Equal Employment Opportunity Commission, the agency responsible for enforcing Title VII, said sexual orientation discrimination was covered, while the Justice Department said it was not.

A spokeswoman for the Justice Department didn’t have an immediate comment on the ruling.

Victoria Lipnic, who was appointed by President Donald Trump last year to be acting chair of the EEOC, said in a statement: “This is a generous view of the law of employment protections, and a needed one.”

The Justice Department has argued the prohibition against sex discrimination is aimed at employment practices that give men or women a disparate advantage, which is separate from sexual-orientation discrimination.

In his 74-page dissent, Judge Gerard Lynch, a Barack Obama appointee, said it should fall to Congress to expand the protections in Title VII, not the courts. “When interpreting an act of Congress, we need to respect the choices made by Congress about which social problems to address, and how to address them,” he wrote.

Aside from employment discrimination, another question courts have grappled with is whether private businesses can deny services to gay customers for religious reasons. In December, the Supreme Court heard a case focused on a baker in Colorado who cited his Christian faith in refusing to make a wedding cake for a same-sex couple.

Since 2015, courts have generally expanded protections for lesbian, gay, bisexual and transgender people.

“As society has become more accepting of LGBT people and the law has followed in that acceptance…conflicts with people who object to sexual minorities for moral or religious reasons are more likely to come to a head,” said Anthony Kreis, a professor at Chicago-Kent College of Law.

Write to Nicole Hong at

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