How Is It Still Legal to Fire Someone for Being Gay?

A New York court ruled today that firing an employee based on sexual orientation is against the law – but the legal battle isn't over yet

Credit: Jacquelyn Martin/AP

Is it illegal to fire people because of their sexual orientation? Ask most people this question and you’ll get the same answer from almost 90% of them - of course it is. Unfortunately, though, in most places in the country that answer is wrong and it is perfectly lawful to do so. Today, however, a New York federal appeals court took a major step toward correcting that wrong, one that if adopted throughout the country will finally protect gay and lesbian people from being fired because of who they are.

How can it possibly be that in 2018 bosses can fire their employees because they’re gay or lesbian? Because the federal law that protects most people from discrimination in employment doesn’t specifically mention sexual orientation. Rather, the law, Title VII of the Civil Rights Act of 1964, says that employers can’t fire someone because of their race, color, religion, national origin, and sex. For over four decades now, there have been attempts to change the language of Title VII to specifically cover sexual orientation, but they have failed repeatedly.

Gay and lesbian workers are not completely without protection though. States, counties, and cities can pass their own laws that protect beyond what federal law does, and to date, twenty-two states and the District of Columbia do so. Another eleven states prohibit sexual orientation discrimination against the very narrow category of public employees. President Obama signed an executive order in 2014 protecting federal employees and contractors from sexual orientation discrimination, and President Trump has so far kept most, though not all, of that order intact.

This piecemeal approach to protecting gay workers means that a large number of people are protected in some form, but that people in the majority of states are not protected. That is, not protected unless the federal law, Title VII, is interpreted to already protect against sexual orientation discrimination, without being changed at all. That is the argument that the Second Circuit Court of Appeals adopted today.

In this case, Donald Zarda, a gay man, claimed that he was fired from his job as a sky-diving instructor in Long Island, NY because of his sexual orientation. He claimed that he told a female student about his sexual orientation. She then told her boyfriend who then complained to Zarda’s boss who then fired Zarda. Today, a 13-judge panel of the Second Circuit agreed with Zarda - that Title VII’s language that prohibits sex discrimination in employment also prohibits sexual orientation discrimination.

How does that work? The court adopted three separate arguments. First, the court said that Zarda may have been fired because of his sexual orientation, but that he was also fired because of his sex, which Title VII clearly prohibits. In fact, the court said that whenever people are fired because they are gay or lesbian, they are being fired because of their sex. To understand this point, think of it this way. If Donald Zarda were instead Donna Zarda and told a client that she was attracted to men, she would not have been fired. But, because Donald said he was attracted to men, he was fired. In other words, it was because of Donald’s sex that he was fired.

Second, the court said that firing someone based on sexual orientation is really firing someone because of sex-based stereotypes. Long-standing Supreme Court precedent says that an employee can’t be fired for failing to live up to sex stereotypes. So, if an employer promotes aggressive men but not aggressive women, the employer is treating women differently based on stereotypes of how men and women are supposed to behave. The same is true in Zarda’s case, said the Second Circuit. The stereotype is that men are heterosexual and attracted to women. Zarda didn’t live up to that stereotype, so he was fired. Title VII prohibits this kind of stereotyping.

Third, the court ruled that Zarda was fired because of the sex of the people he associates with. Title VII has long prohibited firing someone because of the race of the people they associate with (so an employer cannot fire a black employee for being married to or associated with a white person). Today’s ruling says that the same applies to sex, so that a man cannot be fired for being romantically associated with another man, while he wouldn’t be fired for being associated with a woman.

The Trump Department of Justice objected to each of these arguments. In a briefing to the court, the DOJ argued that sex is different than sexual orientation because someone can treat men and women equally while being biased against gay and lesbian people. The court today rejected this argument, saying that while sexual orientation has different aspects than sex discrimination, they overlap in all cases. And because the statute prohibits sex discrimination, no matter if it is also some other form of discrimination, this is illegal.

Very soon this case or one like it is going to be taken by the Supreme Court. There are now three recent decisions by regional federal appeals courts on this issue – today’s decision from the Second Circuit, a similar decision by the Chicago-based Seventh Circuit from last year, and a contrary decision from the Atlanta-based Eleventh Circuit also from last year.

When there is a split among these courts, the Supreme Court usually steps in, especially on an issue of such national importance. If it does, the Supreme Court will decide once and for all whether gay and lesbian people are entitled to equal dignity in employment, like almost everyone else. In the meantime, today’s decision continues to push the law toward more protections from discrimination for LGBT people.