Sexual Orientation Bias Issue May Go to Full 2nd Cir.

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By Kevin McGowan

The estate of a deceased gay skydiving instructor who alleged he was fired because of his sexual orientation has no claim under federal anti-discrimination law, a federal appeals court in New York ruled ( Zarda v. Altitude Express , 2017 BL 125857, 2d Cir., No. 15-3775, 4/18/17 ).

Only the full appeals court can reconsider circuit precedent that holds Title VII of the 1964 Civil Rights Act doesn’t cover bias based on sexual orientation, a three judge panel of the Second Circuit said April 18.

The plaintiffs will ask the full appeals court to do just that, said Gregory Antollino, the New York City attorney who represented the estate.

The case is “pretty much set up” for the full U.S. Court of Appeals for the Second Circuit to reconsider its precedent that denies Title VII protection to gay and lesbian workers, Antollino told Bloomberg BNA April 18.

The plaintiffs are disappointed with the result but pleased the panel issued a decision, Antollino said. “Now, we can go on to the next step” of asking the full Second Circuit to consider the case.

The full U.S. Court of Appeals for the Seventh Circuit in Chicago April 4 became the first federal appeals court to rule Title VII’s ban on sex discrimination necessarily prohibits bias based on sexual orientation. The Seventh Circuit by an 8-3 vote overruled its own circuit precedent in that case.

But the Second Circuit is among the majority of federal appeals courts that have long-standing decisions holding Title VII doesn’t reach sexual orientation.

Last month, a separate Second Circuit panel deciding another case also said it lacked power to overturn the appeals court precedent that Title VII doesn’t cover sexual orientation.

But Judge Robert Katzmann wrote separately on that occasion to say that in an appropriate case, the full Second Circuit should revisit its 2000 precedent in Simonton v. Runyon.

That signals a number of Second Circuit judges “have come to realize that Simonton has outlived its usefulness,” Antollino said.

The Eleventh Circuit also recently ruled Title VII doesn’t prohibit sexual orientation discrimination, citing its own past decisions. A petition for review by the full Eleventh Circuit has been filed in that case, Evans v. Georgia Regional Hospital.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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