DOJ and EEOC Rare Opposition in Gay Discrimination Case at 2nd Circuit 

Tuesday: DOJ and EEOC to Oppose Each Other in Gay Discrimination Case at 2nd Circuit  – The en banc 2nd Circuit Court of Appeals will reconsider longstanding legal precedent concerning employment discrimination based on sexual orientation, while the federal government is a house divided

Screen Shot 2017-09-25 at 9.28.13 AM.pngNEW YORK CITY – This week, the 2nd Circuit Court of Appeals in NYC will hear oral argument in Zarda v. Altitude Express, Inc., a key federal employment discrimination lawsuit out of New York that concerns a man, Don Zarda, who was fired from his job as a skydiving instructor because of his sexual orientation.

The case will be heard en banc, meaning before the full 2nd Circuit court — a rare phenomenon that has taken place only a handful of times in the last decade, and a strong indicator of the case’s significance. The court will reconsider an exclusionary 17-year-old legal precedent that states employment discrimination based on sexual orientation is not prohibited under federal law. The 2nd Circuit has jurisdiction over Connecticut, Vermont and New York.

Notably, the Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC) will argue against each other, in a rare split between two federal government agencies over the same issue. The DOJ claims that discrimination based on sexual orientation has nothing to do with gender, while the EEOC, which oversees discrimination complaints in the workplace, will testify on the opposite side and support the plaintiff’s claim of discrimination under Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on sex.

Courts are increasingly taking up the question of whether federal laws prohibiting discrimination based on sex also prohibit discrimination based on sexual orientation. In April, the 7th Circuit Court of Appeals issued a groundbreaking decision in favor of Lambda Legal’s client, Kimberly Hively, who was fired from her job as a teacher because she is a lesbian; and held that employment discrimination based on sexual orientation is illegal under Title VII — the first time a federal appellate court has ever reached this conclusion. Earlier this month, Lambda Legal filed a petition urging the Supreme Court to review Evans v. Georgia Regional Hospital, a potentially landmark case dealing with workplace discrimination based on sexual orientation.

In June, 50 businesses representing more than 370,000 employees filed a friend-of-the-court brief in support of the plaintiff. It marked the first time that businesses have explicitly taken the legal position that discrimination in employment based on sexual orientation is illegal under Title VII. The list of signers includes Google, Microsoft, Viacom, Spotify, CBS, Ben & Jerry’s, Levi Strauss & Co., and more.

Media may attend the oral argument on Tuesday, but no electronics — including cameras and cell phones — are permitted inside the courthouse. To RSVP for the press conference or to arrange an interview with key players in the case, email

Following the oral argument, the attorney and loved ones of the plaintiff, Lambda Legal attorney Greg Nevins, and organizations involved in the case will host a press conference across the street from the courthouse.

WHO: Attorney Gregory Antollino, a New York-based lawyer with a long history of trying employment discrimination cases; attorney Greg Nevins of Lambda Legal, the nation’s oldest LGBT civil rights legal organization; and loved ones of the plaintiff.

WHAT: Press conference and availability in support of plaintiff Donald Zarda. The press conference will immediately follow oral argument in Zarda v. Altitude Express, Inc. in front of the en banc 2nd Circuit Court of Appeals.

WHERE: Foley Square near the corner of Centre St. and Pearl St., directly across the street from Thurgood Marshall Courthouse, 40 Foley Square, 17th Floor, Room 1703, New York, NY, which is the courthouse in which oral argument will take place.

WHEN: Tuesday, September 26. Oral argument will start at 2pm EST, with the press conference following at approximately 3pm EST.

Thank you to Freedom for All Americans – the bipartisan campaign to secure full nondiscrimination protections for LGBT people nationwide. Their work brings together Republicans and Democrats, businesses large and small, people of faith, and allies from all walks of life to make the case for comprehensive nondiscrimination protections that ensure everyone is treated fairly and equally.

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