Eric Schneiderman for Attorney General

“Bloomberg News: Blue State Trio Joins Appeal Court Fight Over Gay Rights at Work”

June 28, 2017

As published by Bloomberg News, on June 27, 2017.

A trio of solidly Blue States urged a federal appeals court to extend a federal anti-discrimination law to protect workers from being fired for being gay, raising the profile of a divisive social issue that’s likely to be decided by the Supreme Court.

The Civil Rights Act of 1964 prohibits employers from discriminating on the basis of sex, race, color, national origin and religion. The attorneys general of New York, Vermont and Connecticut say the Title VII protection also encompasses sexual orientation. A finding in their favor would remove the need for a nationwide legislation protecting LGBT workers from being fired, which some Democrats in Congress and civil rights activists have sought for decades.

A group of 50 companies and organizations including Microsoft Corp., Google, CBS and Viacom Inc. filed a similar argument as the attorneys general on Monday. The firms declared discrimination based on sexual orientation should be illegal, even if such a move would make them more vulnerable to employee lawsuits.

“No employee should face discrimination because of his or her sexual orientation,” New York Attorney General Eric Schneiderman said Tuesday in a statement. “Title VII is meant to protect all Americans from discrimination based on their sex –- and that includes sexual orientation.”

Donald Zarda, a skydiving instructor sued Altitude Express Inc., claiming the company fired him in 2010 because he was gay. Zarda argued that the federal ban on sex discrimination, which the Supreme Court has ruled includes punishing employees for not conforming to gender stereotypes, prohibits bias on the basis of sexual orientation.

The New York appeals court is slated to hear arguments in September. The question has already divided other courts and could reach the U.S. Supreme Court. Fewer than half of U.S. states have laws prohibiting discrimination over sexual orientation. Many cities and companies have policies in place to protect LGBT workers.

Some appeals courts remain unpersuaded by arguments like Zarda’s. In March, an appeals panel in Georgia rejected a security officer’s sex-discrimination claim.

“Because Congress has not made sexual orientation a protected class,” Judge William Pryor wrote, “the appropriate venue for pressing the argument … is before Congress, not this court.”

Congress has repeatedly defeated efforts to amend civil rights laws to explicitly add sexual orientation, Pryor said.

The New York appeals court also refused to extend the protections in 2000, ruling against a postal worker, Dwayne Simonton who claimed co-workers harassed him for being gay.