Zarda v. Altitude Express: Does Title VII of the Civil Rights Act Protect Against Discrimination on the Basis of Sexual-Orientation?

By Bryce Wachtell (PO ’21)

On Monday, February 26th, the Second Circuit Court of Appeals ruled on Zarda v. Altitude Express. The case resurrected an increasingly-pressing legal question: does Title VII of the Civil Rights Act—which explicitly encompasses protections against employer discrimination on the basis of race, color, religion, sex, and national origin—also implicitly protect against discrimination on the basis of sexual-orientation?  The definite answer to that question has been elusive, as within the federal government and several appellate courts there is disagreement.

In 2010, plaintiff Donald Zarda, an openly gay man, was working  as a skydiving instructor for Altitude Express. One day, the boyfriend of a female client Zarda was working with joked about her being strapped so intimately to another man. Zarda candidly replied that he was “100 percent gay,” to lessen their discomfort. However, the boyfriend later called to complain that Zarda disclosed his sexuality. As a result, Zarda was fired.

In response, Zarda  sued his employer, citing Title VII of the Civil Rights Act. The legal text of Title VII does not explicitly protect against sexual discrimination. However, gay-rights advocates assert that sexual-orientation inherently falls under the greater umbrella of sex, which is explicitly listed as a protected identity. In other words, sexual orientation is dictated by sex, so discrimination against the former necessitates discrimination against the latter.

Opponents to this legal argument, of which include the Trump Administration (which filed an amicus brief siding with the defendant last July), argue that sexual-orientation is a wholly different component of one’s identity and was intentionally not included in the Civil Rights Act. As the Justice Department asserted in their brief, “Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts.” Judge Gerard E. Lynch, one of three dissenting judges in the ruling on February 26, sided with the Justice Department. Judge Lynch explained that he is regretful that Congress has not yet explicitly acted to ban discrimination on the basis of sexual-orientation. Nonetheless, Judge Lynch remains steadfast in his belief that it is the job of Congress via legislation, not the courts via litigation, to establish that precedent.

The content of the amicus brief conducted by the Justice Department conflicts with the US Equal Employment Opportunity Commission’s view that Title VII encompasses sexual-orientation discrimination. The dissension between the Department of Justice and the Equal Employment Opportunity Commision further complicates the matter.

Further convoluting the situation, while this is not the first case of its nature to make its way to an appeals court, the outcome conflicts with the precedents set by the others. In the 1979 case Blum v. Gulf Oil Corporation, a federal appeals court bluntly ruled that, “Discharge for homosexuality is not prohibited by Title VII…” In 2017, this view was reaffirmed by the eleventh circuit, citing the precedent established by Blum nearby forty years prior.

Alternatively, the seventh circuit decided that Title VII of the Civil Rights Act can indeed be stretched to cover sexuality as a component of sex, also in 2017. Despite the conflicting rulings, the Supreme Court turned down an appeal by the eleventh circuit case last year. Now that Zarda has found retribution for his unfair termination, the Blum precedent appears to be further weakened. Because of this, a Supreme Court case on the matter seems imminent to establish clarity and consistency on whether sex discrimination encompasses sexuality too.

When such a case is inevitably heard by the justices, the decision will be about two things. First, does Title VII of the Civil Rights Act encompass sexual discrimination cases via its protection against sex discrimination? Can sex and sexual orientation be decoupled in the eyes of the law?

And, more broadly, does our current group of nine justices prioritize alignment with public opinion in the face of congressional inaction or the adoption of a traditional, constrained role? In other words, generously reading the ambiguities left by congress or hesitantly interpreting the statute to wait for clarification from Capitol Hill?

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