Marilyn Odendahl forwww.theindianalawyer.com

About 11 months after the 7^th Circuit Court of Appeals issued its landmark ruling which found Title VII does prohibit discrimination based on sexual orientation, the 2^nd Circuit Court of Appeals has reached the same conclusion.

The ruling issued today from the full 2^nd Circuit in Zarda v. Altitude Express, Inc., 15-3775, is the second circuit court decision toppling precedent and finding Title VII of the Civil Rights Act of 1964 does extend protections to gay, lesbian, bisexual and transgender individuals. It was a 10-3 decision.

In April 2017, the full 7^th Circuit was the first to reverse its precedent and find Title VII does cover sexual orientation. That case was Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 3362 (7^th Circuit 2017).

Donald Zarda filed his original complaint in 2010 after he was fired from his job as a sky-diving instructor of Altitude Express. He claimed he was discriminated against because of his sexual orientation and his gender.

Chief Judge Robert Katzmann wrote the majority 69-page opinion of which nine other judges joined in full or offered their own concurring opinions. The majority concluded that sexual orientation discrimination is a subset of sex discrimination and employers cannot fire or retaliate against a worker because that person does not fit a sexual stereotype.

“Although sexual orientation discrimination is ‘assuredly not the principal evil that Congress was concerned with when it enacted Title VII,’ ‘statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils,’” Katzmann wrote, referencing Oncale v. Sundowner, 523 U.S. 75 (1998). “In the context of Title VII, the statutory prohibition extends to all discrimination ‘because of … sex’ and sexual orientation discrimination is actionable subset of sex discrimination.”

Judge Gerard Lynch wrote a 73-page dissent which was joined in part by Judges Debra Ann Livingston and Reena Raggi.

Lynch reviewed the events leading to the enactment of Title VII and the prevailing attitude at the time toward same-sex relationships. He then, citing 7^th Circuit Judge Diane Sykes’ dissent in Hively, pointed to the public meaning of the word “sex” in the mid-1960 and argued it was aimed at gender equality.

“The words used in the legislation are used for a reason,” Lynch wrote. “Legislation is adopted in response to perceived social problems, and legislators adopt the language that they do to address social evil or accomplish a desired goal. The word of the statute take meaning from that purpose and the principles it adopts must be read in light of the problem it was enacted to address.”

The case was remanded to the U.S. District Court for the Eastern District of New York for further proceedings.