2d Circuit: Sexual Orientation Protected Under Title VII Rejecting A.G.'s Opposition

Sky diving instructor Donald Zarda filed suit against Altitude Express - his employer- for discharging  him when he revealed to a client that he is gay.  The U.S. Equal Employment Opportunity Commission (EEOC) is charged with enforcing Title VII employment discrimination cases arising under the Civil Rights Act of 1964 (Title VII).  It appeared as amicus curiae supporting Zarda.  But the Department of Justice under Jeff Sessions  appeared as amicus arguing that Title VII does not bar sexual orientation discrimination.  Now, overturning its own precedent the Second Circuit Court of Appeals en banc (every judge participating) has ruled in a 163 page opinion:

We convened this rehearing en banc to consider whether Title VII prohibits discrimination on the basis of sexual orientation such that our 3 precedents to the contrary should be overruled. We now hold that sexual orientation discrimination constitutes a form of discrimination “because of . . . sex,” in violation of Title VII, and overturn Simonton and Dawson v. Bumble & Bumble, 398 F.3d 211, 217–23 (2d Cir. 2005), to the extent they held otherwise. We therefore VACATE the district court’s judgment on the Title VII claim and REMAND for further proceedings consistent with this opinion. We AFFIRM the judgment of the district court in all other respects.

Court to Dismiss Coal Baron's Suit Against John Oliver

West Virginia judge Jeffrey Cramer is dismissing a defamation lawsuitagainst John Oliver stemming from a segment in which a giant squirrel named “Mr. Nutterbutter” told coal baron Robert Murray to eat shit, according to the Hollywood Reporter. HBO and Partially Important Productions had asked that the suit be dismissed because the facts in Oliver’s segment were based on government reports, and the more insulting statements—like Oliver’s assessment that Murray resembles “a geriatric Dr. Evil”—could not be proven true or false. Judge Cramer agreed, and on Wednesday, informed attorneys by letter that he planned to dismiss the case. The judge’s letter is a lot less funny than the West Virginia ACLU’s amicus brief, but has the advantage of being dispositive.

Lawyers for Murray, whose company lost six miners and three rescue workers in the Crandall Canyon Mine collapse, said in their initial complaint that “nothing has ever stressed him more” than the Last Week Tonightsegment, in which a gigantic squirrel named “Mr. Nutterbutter” presented a novelty check for “three acorns and eighteen cents” made out to “Eat Shit, Bob!” (The memo line on the check read “Kiss My Ass,” which does indeed sound stressful, but maybe not “mine collapse with multiple fatalities” stressful.) To be fair, most of the complaint revolved around whether or not Oliver correctly characterized Murray’s handling of the Crandall Canyon Mine collapse, but Mr. Nutterbutter did play a prominent part:

1. Instead, Defendants continued their ruthless character assassination and attack on Plaintiffs’ business reputations by describing Mr. Murray as someone who “looks like a geriatric Dr. Evil” and arranging for a staff member to dress up in a squirrel costume and deliver the message, “Eat Shit, Bob!” to Mr. Murray.

52. If that were not enough, after the live taping, Defendant Oliver exclaimed to the audience that having someone in a squirrel costume tell Mr. Murray to “Eat Shit” was a “dream come true.”

While the judge’s decision may be a setback for Mr. Murray and Murray Energy, it is also a significant step forward for human-sized squirrels named “Mr. Nutterbutter,” the novelty check industry, Last Week Tonight, and the sacred right of every American to tell coal barons to eat shit.