The U.S. Court of Appeals for the 2nd Circuit has just ruled that Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination based on sexual orientation. It reasoned that since Title VII prohibits discrimination based on gender, it must also ban such discrimination based on sexual orientation because sexual orientation is fundamentally a function of gender.

This is the second federal court of appeals to rule that sexual orientation is covered by Title VII. Last April, the 7th Circuit Court of Appeals made essentially the same ruling. In a third case, the U.S. Supreme Court declined to hear an appeal of the issue. In the past, federal courts have essentially assumed that sexual orientation was not covered.

This case involved a New York skydiving instructor who was allegedly fired when he told a client he was gay and the company received a complaint. Sadly, the plaintiff died while BASE jumping subsequent to filing the lawsuit, but his estate continued the case.

Google, Microsoft, CBS and Viacom filed friend of the court briefs on behalf of the plaintiff. The EEOC took the side of the plaintiff, as well.

Opponents of expanding Title VII’s protections, including the Trump administration, have argued that when Congress passed the Civil Rights Act in 1964, it had no intention of prohibiting discrimination based on sexual orientation. The administration said the EEOC was “not speaking for the United States” and had Justice Department lawyer make opposing arguments.

Does discrimination ‘because of sex’ include sexual orientation?

Title VII makes it unlawful for workplaces to “discriminate against any individual because of his race, color, religion, sex, or national origin.” Past federal courts have ruled that discrimination “because of sex” includes discrimination because someone doesn’t fit traditional sexual stereotypes.

If an employer discriminates because of sexual orientation, would that be because the person’s gender does not match the employer’s gender preference?

“If you change the sex of the individual and the outcome would be different, that’s discrimination,” argued the EEOC. One judge substituted “lesbian” for “gay man” and said they both would have been fired.

The EEOC and, ultimately, the court looked at it a different way. If the skydiving instructor had not been a man sexually oriented toward men, but instead a woman who was sexually oriented toward men, she would not have been fired.

In Monday’s en banc ruling, the 2nd Circuit came down 10-3 on the side of the plaintiff. “We see no principled basis for recognizing a violation of Title VII for associational discrimination based on race but not on sex,” the court wrote.