In a ruling that significantly bolsters LGBTQ rights, the Second Circuit Court of Appeals recently found that Title VII of the Civil Rights Act of 1964 protects workers from employment discrimination based on sexual orientation. It is the second federal appeals court to make this finding.

An Affirmative, Clear Stand for LGBTQ Employment Rights

Title VII bars employment discrimination based on sex, race, color, national origin, and religion and it has been a topic of debate in the courts as to whether Congress meant that protection to extend to sexual orientation. But the Second Circuit has now quite clearly said that it does.


“Sexual orientation discrimination—which is motivated by an employer’s opposition to romantic association between particular sexes—is discrimination based on the employee’s own sex,” wrote Judge Robert Katzmann in the opinion issued by the court.

This closely-watched case also saw the odd circumstance of two federal agencies pitted against each other. The Trump Administration’s U.S. Department of Labor argued that Title VII does not apply to sexual orientation, while the federal Equal Employment Opportunity Commission (EEOC) took the position that it does. (Previous EEOC decisions have also found Title VII applies to sexual orientation).

Case Taken Up by Deceased Skydiving Instructor’s Family

The case heard by the Second Circuit was brought in 2010 by skydiving instructor Donald Zarda. It claimed he was fired by his employer, Altitude Express Inc., because he was gay. Zarda’s complaint argued that Title VII’s ban on employment discrimination also includes sexual orientation. After Zarda was killed in a base-jumping accident in Switzerland in 2014, his estate and family continued moving forward with the case.

Next Stop: The Supreme Court?

Though the Second Circuit’s decision is a positive development for LGBTQ employment rights, it does not end the judicial divide on the issue. The Second Circuit joined the Seventh Circuit in affirming Title VII protections for sexual orientation, but the 11th Circuit has previously ruled it doesn’t.

The impasse will likely only be resolved if a case goes to the Supreme Court for a final decision that will be binding in all courts.

All of this bears watching, particularly as it may have an impact on a Michigan case brought by a transgender woman who alleges she was fired by the funeral home she worked for when she transitioned from male to female. The Sixth Circuit recently found in her favor and remanded the case back to a federal judge who had originally dismissed the lawsuit, which was brought by the EEOC.

Courts, EEOC Are Siding with LGBTQ Workers in Discrimination Cases

Though uncertainty remains, both federal and Michigan courts have sided with LGBTQ workers who have brought employment discrimination lawsuits under Title VII of the Civil Rights Act. Because of this, any worker who feels he or she has faced discrimination in the workplace because of his or her sexual orientation would be advised to contact an experienced employment attorney as soon as possible.

Tad T. Roumayah

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Tad T. Roumayah

Tad Roumayah focuses his practice primarily on employment litigation, representing employees who have encountered discrimination, retaliation, wrongful discharge, whistleblower protection claims, wage and hour violations and other employment issues and disputes.