Title VII of the Civil Rights Act bars employers from discriminating “because of” sex. On Tuesday, a New York sky-diving company asked the justices to review a ruling by a federal appeals court that the law applies to discrimination based on sexual orientation. The lower courts are divided on this question, which the company describes as “emblematic of the zeitgeist in American conscience and law respecting gender and sex.” The justices are likely to consider the company’s petition when they return from their summer recess in late September; if they decide to take up the case, it could be argued next winter, with a decision by the end of June 2019.
The dispute arose when the company, now known as Altitude Express, fired Donald Zarda, an instructor with the company. Zarda went to federal court, where he contended that he was terminated because he was gay, a violation of (among other things) Title VII. The company maintained that it let Zarda go after receiving several complaints about his inappropriate behavior, but the trial court threw out that claim, reasoning that Title VII does not allow claims alleging discrimination based on sexual orientation. On appeal, the full U.S. Court of Appeals for the 2nd Circuit reversed that holding. It ruled that Title VII does apply to discrimination based on sexual orientation because such discrimination “is a subset of sex discrimination.”
Altitude Express went to the Supreme Court this week, asking the justices to take up its case. The justices had turned down a similar request late last year, in a case filed by a woman who alleged that she had been harassed and passed over for a promotion at her job as a hospital security officer in Georgia. In that case, however, neither the hospital nor the individual employees named in the lawsuit had participated in the proceedings in the lower courts, and they had told the Supreme Court that they would continue to stay out of the case even if review were granted, which may have made the justices reluctant to review the case on the merits.