By The Charlotte Observer Editorial Board
What’s riskier? Jumping out of an airplane with a stranger’s life in your hands? Or admitting at work that you’re gay?
Donald Zarda could have told you. The New York skydiving instructor lost his job in 2010 after mentioning his sexuality. Now, in an important ruling, a federal appeals court has ruled that Zarda’s firing was illegal, and that federal civil rights law bans employers from discriminating based on sexual orientation.
This is disappointing news, no doubt, to U.S. Rep. Robert Pittenger of Charlotte, but encouraging to anyone who believes it’s fundamentally wrong to be able to hire, fire, promote and demote workers solely because of their sexual orientation.
Pittenger, a Republican, argued in 2014 that employers should be free to fire people because they are gay. He called it one of “the freedoms we enjoy” as Americans. “We don’t want to micromanage people’s lives and businesses,” Pittenger said. He added: “Government intervention is not the best solution for matters of the heart.”
Congress had disagreed 50 years earlier, passing the 1964 Civil Rights Act. Its Title VII bars workplace discrimination based on “race, color, religion, sex or national origin.” The 2ndCircuit court in New York ruled 10-3 on Monday that Title VII also protects gay workers from discrimination based on sexual orientation.
The court had three different rationales: First, that firing people for their sexual orientation is essentially firing them for their sex, which Title VII prohibits. Zarda wouldn’t have been fired for being attracted to men had he been a different gender.
Second, the Supreme Court has ruled that people can’t be fired for failing to live up to their gender’s stereotypes, and the 2nd Circuit said Zarda was.
Finally, courts have long held that a person can’t be fired because of the race of those they associate with, such as firing a black person who associates with white people. The same holds for gender, the court ruled, and Zarda couldn’t be fired for associating with another man.
The New York court is the second federal appeals court (the other is the 7th Circuit, in Chicago, last year) to rule this way. The 11th Circuit, in Atlanta, ruled last year that Title VII does not cover sexual orientation. That disagreement among appeals courts makes it possible the U.S. Supreme Court will settle the matter sooner than later.
We hope it does. And using the 2nd Circuit’s logic, a high court ruling could make sexual orientation a protected class not only for employment but for housing, education and other areas. Polls and the Observer’s reporting have found that, despite some people’s contention otherwise, discrimination against gays is not uncommon.
A strong majority of Americans believe employers should not be able to discriminate against LGBT workers. It’s a matter of time before that’s settled law, and Monday’s ruling was another big, welcome step toward that day.