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.