Gay workers in Connecticut, New York, and Vermont will sleep better tonight knowing that yesterday a federal appeals court in Manhattan ruled that gay employees are allowed to sue their employers over sexual orientation. 

The ruling does not apply nationwide and could be headed to the Supreme Court where possibly it could be reversed because of a history of conflicting rulings.  The decision on February 26^th by the Second U.S. Circuit Court of Appeals is not unlike a ruling in Chicago in April 2017 by appeals judges.  Last year, a federal appeal court in Atlanta ruled the opposite way and the Supreme Court declined the petition.  The federal courts are split around how to interpret anti-discrimination protection under Title VII.  Does the law’s prohibition on sex discrimination in the workplace also cover sexual orientation discrimination?

Donald Zarda thinks it does. Zarda claims that his employers Altitude Express violated the Civil Rights Act of 1964 that prohibits employment discrimination based on “race, color, religion, sex or national origin.”  

The case Zarda v. Altitude Express, 15-3775.:  Donald Zarda, a skydiver, now deceased, sued his employer Altitude Express because he said he was fired in 2010 after a customer complained about Mr. Zarda’s disclosure of his sexual orientation during a jump with a female skydiver.  Mr. Zarda died in 2015, but his family and estate have taken his claim to court.

Last April, a lower court dismissed his case, and the Second Circuit rejected his appeal because they found a distinction between sex and sex orientation. In an unusual move, his case was granted a full appeals court.

The ruling was 10-3 that sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted; therefore, it’s impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account. Consequently, sexual orientation discrimination is a subset of sex discrimination.

In 2015, the U.S. Equal Employment Opportunity Commission, responsible for enforcing Title VII, insisted that the Civil Rights Law covers sexual orientation.  The Justice Department does not share its views.  In July, the Justice Department under the Trump Administration filed an amicus brief that does not support EPOC’s position. Others like Judge Gerard Lynch advocates that Title VII should fall to Congress, not the courts.

The entire United States still does not have a policy that protects LGBTQ workers from being fired for their sexual orientation.  However, with Monday’s federal appeals court ruling siding with LGBTQ people despite Trump’s Administration’s opposition, at least the protections are making inroads.  Maybe Title VII’s arguments like Edie Windsor’s case for legalizing same-sex marriage, will prevail in the Supreme Court, and sexual orientation will be protected throughout the workplaces in the United States.