Second Federal Appeals Court Rules LGBT Workers Protected Against Employment Discrimination

Second Federal Appeals Court Rules LGBT Workers Protected Against Employment Discrimination

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Lambda Legal CEO Rachel B. Tiven stands outside the Second Circuit Court with Staff Attorney Omar Gonzalez-Pagan, Employment Fairness Project Director Greg Nevins, Don's partner William, the estate's lawyer Gregory Antollino and Lambda Legal's Director of Strategy Sharon McGowan.
Lambda Legal CEO Rachel B. Tiven stands outside the Second Circuit Court with Staff Attorney Omar Gonzalez-Pagan, Employment Fairness Project Director Greg Nevins, Don’s partner William, the estate’s lawyer Gregory Antollino and Lambda Legal’s Director of Strategy Sharon McGowan.

Monday, in a 10-3 decision, the full Second Circuit Court of Appeals ruled that discrimination on the basis of sexual orientation violates the Civil Rights Act of 1964, the federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin and religion.

Monday’s ruling comes in the case of the late Donald Zarda, a New York skydiving instructor who was fired from his job because he was gay. Lambda Legal filed a friend-of-the-court brief in support of Zarda’s estate and argued the case before the Second Circuit. The Second Circuit ruling is the latest in a trend of rulings clarifying that Title VII of the Civil Rights Act covers adverse treatment that takes an employee’s gender into account, including firing men, but not women, for the same thing:  being romantically attracted to men.

“Today’s opinion is a huge victory in the fight for equality and fairness for all LGBT workers,” said Greg Nevins, Director of Lambda Legal’s  Employment Fairness Project. “At Lambda Legal’s urging, another federal court of appeals has recognized that federal law protects LGBT people from discrimination because denying someone the right to a job because they are attracted to someone of the same sex is a form of sex discrimination, plain and simple.  We will continue pushing this issue until every LGBT person in this country benefits from the protection that our federal law provides by its plain terms against discrimination because of a person’s sex, including their sexual orientation.”

In the opinion filed Monday, Chief Judge Katzmann writes:

“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.” Oncale, 523 U.S. at 80. In the context of Title VII, the statutory prohibition extends to all discrimination “because of . . . sex” and sexual orientation discrimination is an actionable subset of sex discrimination. We overturn our prior precedents to the contrary to the extent they conflict with this ruling.”

In April, in a landmark decision in a Lambda Legal case, the full Seventh Circuit Court of Appeals ruled in favor of Kim Hively, a math instructor in Indiana who was fired for being a lesbian.

Lambda Legal’s involvement in this case, as well as Hively v. Ivy Tech and Evans v. Georgia Regional Hospital, is a part of a national effort to establish and enforce employment discrimination protection for all LGBT people and everyone living with HIV. In addition to the sexual orientation cases, these efforts include an historic win for transgender workplace rights in Glenn v. Brumby and the current lawsuit Karnoski v. Trump challenging the ban on transgender troops. Lambda Legal also launched Out at Work, a campaign to support Jameka Evans in her pursuit for justice, bring awareness to LGBT people everywhere of their Title VII rights, and assert that all people have the right to a job with dignity, free from repercussions for who they are or whom they love.

Gregory R. Nevins, Sharon McGowan, and Omar Gonzalez-Pagan are the attorneys for Lambda Legal in this matter. They are joined by Attorney Michael D.B. Kavey.

Read the Second Circuit Court of Appeals opinion here: https://www.lambdalegal.org/in-court/legal-docs/ny_zarda_20180226_opinion.

More information about Lambda Legal’s work on employment protections is available here: http://www.lambdalegal.org/issues/employment-and-rights-in-the-workplace.

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