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Second Circuit Court of Appeals Holds Federal Anti-Discrimination Laws Cover Sexual Orientation


Recently, the Second Circuit Court of Appeals  became the second Circuit Court  in the country to declare that the federal Civil Rights Act protects employees from being fired because of their sexual orientation. The opinion follows hot on the heels of conflicting statements provided by the Justice Department and the EEOC, as well as a number of courts across the country. Although many consider the recent opinion to be a step in the right direction, others predict that the issue will ultimately be decided by the Supreme Court who denied a request to review a similar case last year.

Despite the Second Circuit’s  ruling, discrimination based on sexual orientation remains a complicated legal issue, which has not been resolved.

Legal Protection Under Title VII 

The lawsuit in question was initially filed by a man who was fired in 2010 from a job as a skydiving instructor after disclosing his sexual orientation to a customer. Although two lower courts initially ruled against the plaintiff, in its opinion, the Second Circuit Court of Appeals rejected the Justice Department’s argument that Title VII of the Civil Rights Act doesn’t cover sexual orientation because the provision regarding sex in the statute only refers to biological gender. Instead, the Court acknowledged that the legal framework for evaluating civil rights claims has evolved in recent years to include expanded protections against discrimination based on sex stereotypes. The judges went on to affirmatively state that Title VII should be interpreted as including sexual orientation, which according to the court, is a subset of sex discrimination because it is motivated at least in part, by sex. Three of the eleven judges dissented, one of whom indicated that although he was sympathetic to the plaintiff’s situation, he ultimately disagreed with the majority opinion because Congress never intended Title VII to cover sexual orientation and, until it addressed this issue, it would remain an unprotected characteristic.

The decision aligns with an opinion issued by the EEOC in 2016, which, while ruling on a separate matter, found that sexual orientation is inherently a sex-based consideration and so should be a protected characteristic under federal law. This opinion remains in direct conflict with the Justice Department’s stance, as well as rulings from a number of other courts across the country. For these reasons, the recent Second Circuit ruling could create a situation in which the issue of gay rights will be sufficient to prompt review by a Supreme Court. Last December, the Supreme Court denied a similar request to hear an appeal filed by a plaintiff who was allegedly fired as a result of her sexual orientation.

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