U.S. Court of Appeals for the Second Circuit.

A split U.S. Court of Appeals for the Second Circuit Monday broke with precedent in finding sexual orientation covered under federal workplace discrimination protections. The case, argued before a rare en banc hearing last September, saw the federal government split over the question of whether Title VII of the Civil Rights Act of 1964 covered sexual orientation. The decision creates another avenue to bring the issue back to the U.S. Supreme Court, which declined to hear a similar case last year.

In the majority opinion, written by Chief Judge Robert Katzmann, the court acknowledged that the view on the law around the issue had changed. The Seventh Circuit last year issued a decision in favor of sexual orientation protections in the workplace and “the legal framework for evaluating Title VII claims has evolved substantially,” requiring the overturning of prior precedents, the court stated. The Eleventh Circuit last year declined to recognize such a claim.

“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,” the court said, quoting the relevant element in the Civil Rights Act.

Yet not all the circuit judges joined with the majority. Only four other judges joined in full. Five others joined in part, including Circuit Judge Dennis Jacobs, who agreed with about a third of the majority opinion, but called “much of the rest” of the opinion “woke dicta.” Three judges filed dissenting opinions.

Donald Zarda's suit finding its way to a full hearing before the Second Circuit was the fruits of this evolutionary process elsewhere in government—even as the case saw a deep split between different parts of the executive branch. Last summer, the department under U.S. Attorney General Jeff Sessions reversed its stance in the case and argued sexual orientation should not be protected. The U.S. Equal Employment Opportunity Commission has strongly favored including sexual orientation under the umbrella of Title VII in recent years, and its views have been essential in framing arguments in favor of inclusion.

Zarda, a now-deceased skydiving instructor, brought his suit against his former employer, Altitude Express, after being fired in 2010. According to Zarda, the action was retaliatory. He claimed a customer he'd told he was gay complained about inappropriate touching during a jump. The company said it was his behavior, not his sexual orientation, that resulted in his dismissal.

That same year, Zarda filed suit, making claims under Title VII, as well as New York state law. He also filed a complaint with the Equal Employment Opportunity Commission, claiming he was discriminated against because of his sexual orientation, as well as his gender.

In 2014, U.S. District Judge Joseph Bianco of the Eastern District of New York granted summary judgment in favor of the defendants, which relied on precedent that barred Title VII claims based on sexual orientation, even as the state claims proceeded. While Zarda's remaining claims were pending, the EEOC issued its critical 2015 decision in Baldwin v. Foxx, that held that “allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex.”

When Zarda attempted to revive his Title VII claim based on Baldwin, Bianco ruled against him, citing the Second Circuit's decision from 2000 in Simonton v. Runyon that held sexual discrimination claims, including issues related to nonconforming gender stereotypes, remained uncovered by Title VII.

Zarda's loss on his remaining claims at trial sent the case on appeal to the Second Circuit in 2015. A panel in April 2017 refused to weigh in on Zarda's claims that the Simonton precedent should be overturned, affirming the lower court's decision. An en banc hearing on the case was requested in May, and oral arguments occurred in September.

Dispensing with its prior findings, the circuit relied on a number of Supreme Court findings over the years to build itself a ladder to reversing its prior precedent. As the court noted, the expansion of high-court precedent since the passage of the Civil Rights Act has provided critical new law necessary to find Title VII's coverage of sexual orientation discrimination.

Under the Supreme Court's 1978 ruling in L.A. Department of Water & Power v. Manhart, “traits that operate as a proxy for sex are an impermissible basis for disparate treatment of men and women,” the circuit stated. In 1989, the court in Price Waterhouse v. Hopkins prohibited discrimination on the basis of sex stereotypes. More recently, in 2008, the court's Holcomb v. Iona College decision found that it was unlawful to discriminate on the basis of an employee's association, in that context people of another race.

Each decision provided a necessary component for the circuit. Sexual orientation, the majority held, is, in fact, a subset of sex discrimination, as sexual orientation is defined by an individual's sex, and the sex of the person he or she is attracted to. Sex—a protected class—is therefore an unavoidably part of any calculation by an employer who makes decisions based on a person's sexual orientation.

Sexual orientation discrimination is also based on stereotypes “about how members of a particular gender should be, including to whom they should be attracted,” the circuit court said. Lastly, sexual orientation discrimination is a form of associational discrimination, the court found, as “an adverse employment action” motivated by aversion to associations “between members of particular sexes” is also discrimination based on sex.

The defendants and their backers, including the Justice Department, argued in part that if Congress had wanted to have Title VII cover sexual orientation, they would have included it, or, at the very least, updated the Civil Rights Act accordingly.

In an opinion dissenting on the totality of the majority's opinion, Circuit Judge Gerard Lynch, who was joined by Judge Debra Ann Livingston, said he would be “delighted to awake one morning and learn that Congress had just passed legislation” to add protections to the Civil Rights Act.

“I would be equally pleased to awake to learn that Congress had secretly passed such legislation more than a half century ago—until I actually woke up and realized that I must have been still asleep and dreaming,” he continued. “Because we all know that Congress did no such thing.”

The majority, however, found the argument unavailing, as the Supreme Court has found that prohibitions can often go beyond the letter of the law to cover reasonably comparable “evils.”

DOJ spokesman Devin O'Malley said in a statement that the department remained committed to protecting rights and enforcing laws that prohibit discrimination based on sexual orientation, but remained “committed to the fundamental principle that the courts cannot expand the law beyond what Congress has provided.”

“The position that the department advocated in this case has been its long-standing position across administrations and remains the law of nine different Courts of Appeals,” he said.

In a statement, EEOC acting chair Victoria Lipnic called the circuit's decision generous and needed.

“Today, the Second Circuit became the second federal Court of Appeals to hold that Title VII provides legal employment protections for individuals based on their sexual orientation,” she said. “The EEOC has advanced this legal interpretation for the past few years, and I commend the fine lawyering by the agency that contributed to today's decision.”

Zabell & Associates name attorney Saul Zabell represented Zarda's former employer on appeal. While praising the en banc panel for “curing this glaring legislative gap in fundamental human rights,” Zabell said he and his clients were equally disappointed that the panel “chose to ignore the facts of the underlying matter.

“In the course of doing so, the panel exceeded their judicial mandate to reach what appears to be a predetermined conclusion,” he said. “Although we recognize the dire need for this change in the law, the manner in which it was effectuated calls into question the scope of power relative to the branches of government.”

Zarda's estate was represented by Gregory Antollino. Reached by phone, he said he and the estate were thrilled by the decision—one that he knew would have made his former client proud.

“I knew Don was frustrated by how long justice was taking, but even if the gears of justice turn so slowly, after almost eight years, he's finally got justice,” he said.