New York City Appeals Court Affirms Gay Employees' Right to Sue for Discrimination

The lawsuit, filed in 2010 by skydiving instructor Donald Zarda—who said he was fired after a customer complained that he disclosed his sexual orientation to her—argues that firing employees for being gay violates the Civil Rights Act of 1964. The act bans discrimination based on “race, color, religion, sex, or national origin.”

In its decision, the Second U.S. Circuit Court of Appeals essentially argued that sexual expression is inextricable from a person’s sex, 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.”

From the Wall Street Journal:

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. […]

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.

During the oral arguments for the case, two federal agencies spoke on opposite sides—the Equal Employment Opportunity Commission arguing that sexual orientation is covered under the law, while the Justice Department argued that it isn’t.