A gay-rights flag outside the U.S. Supreme Court. Credit: Diego M. Radzinschi / NLJ

A New York attorney representing a skydiving company is asking the U.S. Supreme Court to overturn a landmark ruling that said employers can't discriminate on the basis of sexual orientation, marking the latest front on a contentious question that has divided federal appeals courts.

The petitioner, Altitude Express Inc., is challenging a February ruling by the U.S. Court of Appeals for the Second Circuit. The en banc court, itself divided, said sexual orientation should be protected under Title VII of the Civil Rights Act.

Altitude Express is represented by Saul Zabell of Zabell & Associates, based in Bohemia, New York. Zabell was not immediately reached for comment Thursday.

Zabell's petition said the Second Circuit's decision—which aligned with a Seventh Circuit ruling last year—departed from more than 50 years of precedent to conclude that sexual orientation is a subset of “sex” discrimination protected under Title VII.

“Laudable as the ends may be, the means deployed by the Second Circuit nonetheless circumvent the immutable legislative process by which we remain bound to govern,” Zabell wrote in his petition. “As citizens and a nation, we can strive for the level of inclusion reached by the Second Circuit. However, this cannot be achieved at the expense of compromising our democratic process. The Constitution established a procedure for enacting and amending statutes: bicameralism and presentment. Statutory emendation by the judiciary cannot be reconciled with this construct.”

A former skydiving instructor named Don Zarda sued the company over claims he was terminated after he'd revealed he was gay. Zarda died in 2015.

In the Second Circuit, the Zarda case pitted Trump's Justice Department against the U.S. Equal Employment Opportunity Commission. Main Justice argued against greater LGBT protections for workers. The appeals court embraced the EEOC's position that sexual orientation is protected. The EEOC has since pointed to the Zarda decision in an appeal pending in the Eighth Circuit—Horton v. Midwest Geriatric Management LLC.

The Second Circuit's ruling widened the divide in the federal appeals courts. The Seventh Circuit last year found that sexual orientation should be protected. An Eleventh Circuit panel concluded otherwise. The justices in December turned down a petition that challenged the Eleventh Circuit ruling.

There's another Eleventh Circuit case pending in the Supreme Court that confronts the scope of workplace protections for gay and lesbian employees. The law firm Buckley Beal represents the petitioner, Gerald Lynn Bostock, in his case against Clayton County, Georgia. The Eleventh Circuit, reaffirming earlier rulings, said in May that Title VII doesn't protect sexual orientation.

Zabell said in a February interview that Title VII should cover the rights of LGBT workers, but “it doesn't and hasn't. The Second Circuit is now rewriting the law. That is inappropriate.”

Masen Davis, executive director of Freedom for All Americans, said in a statement Wednesday: “Our opponents in Zarda already conceded that Title VII protects people from discrimination based on sexual orientation—and now they're backtracking and trying to get the Supreme Court to weigh in. It's hard to imagine what's causing such a sudden change of heart from the defendants, but they're staking out an argument at odds with growing legal precedent and public opinion.”

 

Read more:

EEOC Takes 'Zarda' LGBT Win on the Road to Another US Appeals Court

US Appeals Court Ruling Highlights 'Evolving Nature' of Title VII Protections

Transgender Professor, Denied Reinstatement After Jury Win, Plans to Appeal

How PwC Handled Its First Transgender Employee Transition in the Workplace

Trump's EEOC General Counsel Pick to Focus on Individual Cases, Not Systemic

Trump Administration Lines Up Against EEOC in LGBT Workplace Rights Case