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2nd Circuit rules Title VII bars anti-gay workplace discrimination

Posted: 26 Feb 2018 07:14 AM PST

The U.S. Court of Appeals for the Second Circuit has issued a ruling against anti-gay workplace discrimination. (Photo by Ken Lund; courtesy Flickr)

In a major ruling affirming protections for lesbian, gay and bisexual workers, a federal appeals court in New York City ruled Monday employment discrimination based on sexual orientation is unlawful under Title VII of the Civil Rights Act of 1964.

In a 69-page “en banc” decision from the full court, the Second Circuit finds Donald Zarda, a now deceased skydiver who alleges he was fired from Altitude Express for being gay, can sue under existing civil rights law because sexual-orientation discrimination is a form of sex discrimination.

Writing for the court in the 10-3 decision, U.S. Chief Circuit Judge Robert Katzmann concludes Zarda’s estate is “entitled to bring a Title VII claim for discrimination based on sexual orientation.”

“Zarda has alleged that, by ‘honestly referr[ing] to his sexual orientation,’ he failed to ‘conform to the straight male macho stereotype,'” Katzmann writes. “For this reason, he has alleged a claim of discrimination of the kind we now hold cognizable under Title VII.”

The decision vacates a trial court ruling against Zarda’s claims based on sexual-orientation discrimination under Title VII, remanding the case to the court for reconsideration. The “en banc” ruling also overturns Second Circuit precedent against protections for gay workers in the jurisdiction — the 2000 decision in Simonton v. Runyon and the 2005 decision in Dawson v. Bumble & Bumble.

In the past year alone, that precedent formed the basis for two rulings from three-judge panels on Second Circuit against the idea of sexual-orientation discrimination is sex discrimination (although in one case, the court ruled in favor of the gay plaintiff anyway based on sex-stereotyping claims). The latest “en banc” ruling means lesbian, gay and bisexual plaintiffs will now unequivocally be able seek relief in the Second Circuit if they face anti-gay workplace discrimination.

The ruling is also a blow to the Trump administration, which sent Deputy Assistant Attorney General Hashim Mooppan to the court for oral arguments in September to argue employers should be able to fire workers for being gay despite Title VII.

Greg Nevins, an attorney and employment fairness project director for Lambda Legal, argued on behalf of Zarda before the Second Circuit and said the court’s decision “huge” in the effort to prohibit anti-gay workplace discrimination nationwide.

“It really changes the dynamics about how people talk about the who’s winning this argument,” Nevins said. “Nobody can call Hively and outlier. We now have an overwhelming victory in two circuits — out of Chicago, and out of New York now — and both of them were lopsided.”

In the reasoning for the decision, Katzmann finds three separate ways in which sexual-orientation discrimination is a subset a sex discrimination.

First, Katzmann sexual orientation “is defined by one's sex in relation to the sex of those to whom one is attracted,” which makes it impossible to discriminate on the basis of sexual orientation without taking sex into account.

Secondly, Katzmann finds anti-gay bias in based on assumptions and stereotypes about gender, which the U.S. Supreme Court has made clear is an unlawful motive for employment discrimination under existing precedent.

Finally, Katzmann finds anti-gay workplace discrimination is associational discrimination based on sex because the employer is making a judgment about whom an employee should have a relationship.

“Consistent with the nature of sexual orientation, in most contexts where an employer discriminates based on sexual orientation, the employer's decision is predicated on opposition to romantic association between particular sexes,” Katzmann writes. “For example, when an employer fires a gay man based on the belief that men should not be attracted to other men, the employer discriminates based on the employee's own sex.”

Four other judges on the Second Circuit filed concurring opinions in the case that affirmed protections for gay, lesbian and bisexual workers under Title VII, but reached that conclusion differently. The judges picked and chose from the findings presented by Katzmann on sexual-orientation discrimination, although none disputed of any the reasoning.

The court reached a conclusion in favor of Zarda despite efforts from the Justice Department to convince the court otherwise. In a strange development, one arm of the federal government, the Justice Department, had argued against gay protections, but another arm, the U.S. Equal Employment Opportunity Commission, argued in favor of them.

The Washington Blade placed a request in with the Justice Department and the EEOC seeking comment on the decision.

The Second Circuit is the second federal appeals court to find anti-gay discrimination is unlawful under Title VII and contributes an emerging legal consensus that sexual-orientation amounts to sex discrimination under current law. In 2015, the EEOC determined in the case of Baldwin v. Foxx it would accept and litigation cases of anti-gay discrimination under Title VII.

Last year, the U.S. Seventh Circuit Court of Appeals in the case of Hively v. Ivy Tech became the first federal appeals court to find anti-gay discrimination is illegal under Title VII. The U.S. Eleventh Circuit Court of Appeals, however, reached the opposite the conclusion and found no protections for gay workers in the case of Evans v. Georgia Regional Hospital.

Despite the circuit split, the U.S. Supreme Court refused to grant a writ of certiorari in the Evans case to iron out once and for all nationwide whether Title VII affords non-discrimination protections for lesbian, gay, bisexual workers.

Eric Lesh, executive director of the LGBT Bar Association of New York, said in a statement “momentum is headed towards justice under the law for LGBT employees” in the aftermath of the Second Circuit ruling.

"Today, the Second Circuit joined many other federal courts in recognizing that Title VII of the Civil Rights Act of 1964 extends to prohibit discrimination based on sexual orientation,” Lesh said. “The LGBT Bar of New York agrees with the full Second Circuit — which sits in our backyard. Everyone has the right to feel safe and protected at work. The U.S. Supreme Court should settle the divide among our appellate courts. LGBT employees need to know that they are protected under federal law. The time is now."

In what may be the opposite of a silver lining to gay workers, the ruling leaves no opportunity for LGBT rights advocates to seek review from the Supreme Court in hopes of a nationwide decision. The only party that could file the petition is Altitude Express, but the company defended its termination of Zarda based on a technicality and isn’t likely to seek review.

Saul Zabell, an attorney with the Bohemia, N.Y.-based law firm Zabell & Associates, represented Attitude Express and expressed disappointment with the decision, but was non-committal about a decision for filing a petition for certiorari.

“We are extremely proud of the esteemed ‘en banc’ panel of the Second Circuit for curing this glaring legislative gap in fundamental human rights,” Zabell said. “Though we are equally as 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. 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.”

Asked whether that meant Altitude Express would seek review before the Supreme Court, Zabell replied the company is still reviewing options.

More to come…

Puerto Rico must not be forgotten

Posted: 26 Feb 2018 02:00 AM PST

A nearly empty beach in Luquillo, Puerto Rico, on Feb. 3, 2018. (Washington Blade photo by Michael K. Lavers)

LUQUILLO, Puerto Rico — It was shortly after noon on Feb. 3 when I walked onto the beach in Luquillo, a municipality on Puerto Rico’s northeastern coast that is about 45 minutes east of the U.S. commonwealth’s capital of San Juan. The water was warm and clear and the trade winds were refreshing. The sky was a deep blue with no clouds. Palm trees along the beach without their crowns were stark testimony of the power of Hurricane Maria that ravaged Puerto Rico less than five months earlier.

The fact there were only a handful of people on the beach on this beautiful February afternoon was another indication that the situation in Puerto Rico remains far from normal after Maria. The humanitarian catastrophe I saw while on assignment from Jan. 29-Feb. 3 provided definitive proof that things are not well in the U.S. commonwealth.

Paula, a 98-year-old woman who lives on the island of Vieques, had no electricity in her home on Jan. 31 when Wilfred Labiosa and Grissel Bonilla, co-founders of Waves Ahead, an organization that has provided assistance to LGBT Puerto Ricans and other vulnerable groups, and three volunteers from Intersections International, an LGBT-affirming ministry that is based in New York, brought her food and water and personal hygiene products. Ricky Santiago, a gay hairdresser, is among the caretakers for his bedridden father who was in a stifling bedroom in his family’s hurricane-damaged house in the city of Humacao’s Candelera Arriba neighborhood when Labiosa and Bonilla and a group of volunteers visited on Feb. 1. Mangled trees, damaged utility poles and nearly impassible roads continue to make access to Puerto Rico’s rural communities difficult. Blue tarps — “techos azules” in Puerto Rican Spanish — that have been placed over buildings are a common sight across the island.

Some Puerto Ricans have reportedly taken their own lives after the Federal Emergency Management Agency denied their applications for assistance.

Bill’s Kitchen, a San Juan-based organization that prepares meals for Puerto Ricans with HIV/AIDS, did not have electricity from when Hurricane Irma brushed the island from Sept. 7 until Jan. 31. The majority of the traffic lights in San Juan are still not working. Many of the road signs that had been along Puerto Rico’s expressways and highways before Maria are gone. Debris from a hanger at San Juan’s Luis Muñoz Marín International Airport the hurricane destroyed remains visible from one of the runways.

The humanitarian catastrophe that continues to unfold in Puerto Rico more than five months after Maria is unconscionable. The federal government’s response to it speaks for itself. The good people of Puerto Rico, however, are resilient and doing their best to rise above the circumstances in which they and their beautiful island find themselves.

A woman at the Bear Tavern PR, a gay bar in San Juan’s Ocean Park neighborhood, on Feb. 1 passed around pieces of her Birthday cake. Ely’s Place, a lesbian-owned restaurant that is near the beach in Luquillo, was open on Feb. 3 and serving mofongo (mashed plantains) and other traditional Puerto Rican dishes. Marciana Encarnación Caraballo, a 101-year-old woman who lives in Vieques, on Jan. 30 began to smoke a cigarette on the porch of her house before Labiosa, Bonilla, the Intersections International volunteers and this reporter left.

Marciana Encarnación Caraballo, 101, smokes a cigarette on the porch of her house in Vieques, Puerto Rico, on Jan. 31, 2018. (Washington Blade photo by Michael K. Lavers)

It is going to take billions of dollars and political will from D.C., San Juan and Puerto Rico’s 78 municipalities to rebuild the island. The 3.4 million people who lived in Puerto Rico before Maria deserve nothing less. Their fellow Americans who live in the mainland U.S. must also not forget about them.

T-shirts for sale at a store in Ponce, Puerto Rico, on Feb. 2, 2018, have a hashtag that reads “Puerto Rico will rise again.” (Washington Blade photo by Michael K. Lavers)