April 18, 2017 at 6:08 pm EDT | by Chris Johnson
2nd Circuit (again) finds anti-gay discrimination legal under Title VII

The Second Circuit has declined to anti-gay discrimination is illegal under Title VII.

In a case filed by a now deceased gay skydiver who alleged sexual-orientation discrimination in the workforce, the U.S. Second Circuit Court of Appeals on Tuesday declined to accept the legal argument that anti-gay discrimination is prohibited under current federal civil rights law.

In a 13-page decision, the three-judge panel cites a 2000 decision in the Simonton case, a 2nd Circuit ruling that determined Title VII of the Civil Rights Act of the 1964, which bars sex discrimination in the workforce, doesn’t apply to sexual orientation. As a result of that precedent, the panel concludes Title VII cannot be applied in the pending case, named Zarda v. Altitude Express.

The unanimous ruling concludes that precedent “can only be overturned by the entire Court sitting en banc,” which would require consideration of the case by the full court as opposed to the three-judge panel.

It’s the second time within a month the 2nd Circuit has found sexual-orientation discrimination is permitted under federal civil rights law. Last month in the case Christiansen v. Omnicom Group, a different three-judge panel found that precedent precluded the court from determining that anti-gay bias is illegal, although the judges still ruled in favor of the plaintiff on the basis that the nature of the discrimination he faced was sex stereotyping.

The decision stands in contrast to the recent groundbreaking “en banc” decision by the U.S. Seventh Circuit Court of Appeals that determined anti-gay discrimination in the workforce amounts to sex discrimination under current law. A growing number of trial courts and the U.S. Equal Employment Opportunity Commission have also reached that conclusion.

The 2nd Circuit case was filed by Donald Zarda, a gay skydiver who alleged he was terminated from his position at Altitude Express for disclosing his sexual orientation to his client. In response, the company maintained the client “had various complaints about Zarda’s behavior” other than disclosure of his sexual orientation and he was fired because “he failed to provide an enjoyable experience for a customer.” According to media reports, the client accused him of fondling her in mid-air.

According to the ruling, Zarda died in a skydiving accident before the case went to trial, and two executors of his estate have replaced him as plaintiff. Zarda’s obituary states he died in Switzerland in 2014 as he was pursuing European Union citizenship.

At trial court, Zarda contended his firing was illegal both under Title VII and New York state law, which explicitly bars discrimination on the basis of sexual orientation. The trial court rejected his Title VII claim and also ruled in favor of Altitude Express under state law, saying Zarda didn’t meet the burden of proof he could keep his job if only he wasn’t gay.

The Second Circuit determines Zarda may be qualified for relief under Title VII because federal law has a less stringent “motivating-factor” test of causation, but nonetheless the judges say they can’t rule for him because of precedent within the circuit.

Although judges in the Christiansen case granted the plaintiff relief on the basis that he suffered discrimination on sex-stereotyping claims, the Second Circuit in the Zarda case determines it cannot reach a similar conclusion.

“That route is unavailable to Zarda, since, as explained above, the district court found that Zarda failed to establish the requisite proximity between his termination and his failure to conform to gender stereotypes, and Zarda did not challenge that determination on appeal,” the decision says. “Consequently, Zarda may receive a new trial only if Title VII’s prohibition on sex discrimination encompasses discrimination based on sexual orientation — a result foreclosed by Simonton.”

The three-judge panel consists of U.S. Circuit Judge Dennis Jacobs, a George H.W. Bush appointee; U.S. Circuit Judge Robert Sack, a Clinton appointee; and U.S. Senior Judge Gerard Lynch, an Obama appointee.

Gregory Antollino, the New York-based attorney representing the Zarda estate, told the Washington Blade his legal team intends to file for “en banc” review of the decision before the full Second Circuit.

h/t Equality Case Files

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

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