Sitting en banc, the court split 10-3 over whether sexual orientation is included in the Act’s prohibition of sex discrimination. In the majority opinion, Judge Robert A. Katzmann wrote that “sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.” However, in a dissenting opinion, Judge Gerard E. Lynch, wrote that Title VII “did not, and does not, prohibit discrimination against people because of their sexual orientation.” He made clear this was his ruling as a judge and that as a private citizen, thinks it would be great if Congress did pass such a law.
The case is interesting because federal agencies argued both sides of the issue. The EEOC argued that federal law prohibits employers from discriminating against gay employees. Whereas, a deputy assistant attorney general with the Department of Justice argued that sexual orientation was not included in the meaning of “sex” in the law that prohibits discrimination based on “race, color, religion, sex, or national origin.”
Eventually, the issue of LGBTQ employees’ protection under federal law will need to be resolved at the Supreme Court level, and there is no indication when that might happen. Unfortunately, Mr. Zarda was not able to see this victory at the Circuit level, as he died in a BASE jumping accident in 2014.