Employment & Labor Insider

The U.S. Court of Appeals for the Second Circuit (Connecticut, New York, and Vermont) agreed yesterday to rehear en banc an appeal from the estate of a gay skydiving instructor who alleged he was fired after a customer complained about his sexual orientation. The case is Zarda v. Altitude Express.

The issue to be decided by the court is "Does Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of sexual orientation through its prohibition of discrimination 'because of . . . sex?'"

"En banc" means that the case will be heard by all of the judges on the Second Circuit instead of a three-judge panel. The full court has the authority to overrule its precedent. In the context of this case, Second Circuit precedent holds that sexual orientation discrimination is not "sex discrimination" prohibited by Title VII. Based on that precedent, a three-judge panel of the Second Circuit affirmed dismissal of the Title VII claims in the Zarda lawsuit in April. (Claims under New York State law went to a jury, and the employer won.)

The U.S. Court of Appeals for the Seventh Circuit (Illinois, Indiana, and Wisconsin) decided earlier this year in Hively v. Ivy Tech that Title VII does prohibit sexual orientation discrimination. A three-judge panel of the Eleventh Circuit (Alabama, Florida, and Georgia) said in Evans v. Georgia Regional Hospital that it does not, but there was a forceful dissent, and the plaintiff has asked for her case to be reheard by all of the Eleventh Circuit judges. The court has not yet decided whether it will rehear that case.