Federal civil rights law prohibits employment discrimination based on “sex.” In recent years, the federal government and the courts have struggled with the question of whether “sex” broadly includes sexual orientation. In other words, is it sex discrimination to fire individuals because they are gay, bisexual, or transgender?
Historically, federal appeals courts have held that discrimination based on sexual orientation is not “sex discrimination” for purposes of federal law. The U.S. Supreme Court has never directly addressed the issue. But the Court may soon get involved based on a recent decision from Chicago and a forthcoming ruling from the federal appeals court here in New York.
Gay Skydiver's Lawsuit May Be Revived
In April, the New York-based Second Circuit Court of Appeals rejected a sex discrimination lawsuit maintained by the estate of a man who was allegedly fired from his skydiving instructor job for being a homosexual. The employer claimed the employee was fired for failing to “provide an enjoyable experience for a customer,” but the employee said he was fired after he told the customer about his sexual orientation.
The employee initially sued under federal and New York State employment discrimination laws. The employee died in a skydiving accident during the course of the litigation. While state law clearly protects employees from employment discrimination based on “sexual orientation,” the trial court granted summary judgment to the employer on the employee's federal law claims. The judge said that under previous decisions from the Second Circuit, which bind all federal courts in New York, sex discrimination does not include sexual orientation.
On appeal to the Second Circuit in this case, the estate asked the Court to overturn its prior decisions. Federal appeals are usually heard by three-judge panels. The panel here said it “lacks the power to overturn Circuit precedent,” so it “declined” the estate's request.
However, the full Second Circuit, which currently consists of 11 judges, recently agreed to rehear the estate's arguments “en banc,” or as a group. Unlike the three-judge panel, the en banc court can reconsider and override its own prior decisions. The re-argument will take place later this year.
Will the Supreme Court Finally Get Involved?
If the Second Circuit ultimately sides with the estate, it would be the second en banc appeals court to extend federal sex discrimination law protections to sexual orientation this year. In April, the Seventh Circuit Court of Appeals in Chicago overturned its own existing precedent on this issue. By an 8-3 vote, the Chicago court held that “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination” under federal law. In a concurring opinion, one judge noted that “discriminating against [an] employee because they are homosexual constitutes discriminating against an employee because of (A) the employee's sex, and (B) their sexual attraction to individuals of the same sex.”
Have You Been Discriminated Against Based on Sexual Orientation?
If the Second Circuit follows the Seventh Circuit's lead, it would be welcome news for LGBT employees throughout New York. Even if the Second Circuit stands by its current precedent, that would set up a conflict with the Seventh Circuit that could force the Supreme Court to step in and decide the matter once and for all.
As noted above, regardless of the changing state of federal law, New York State still prohibits employment discrimination based on sexual orientation. If you have been adversely affected in your employment due to your sexuality and need advice from an experienced New York employment law attorney on what to do next, contact the Law Offices of Mahir S. Nisar today.