Second Circuit Brings Happy Gay Nicetimes, Tells Jeff Sessions To Get Fucked

Nicetimes? Can it be? IT CAN! We now have two federal circuit courts ruling that you can't fire someone for being gay. YOU get a gay wedding, and YOU get a gay wedding ...

Just the Facts

The plaintiff, Donald Zarda, was a diving instructor at Skydive Long Island. For reasons unclear to your FDF, people actually pay money to jump out of an airplane "strapped hip‐to‐hip and shoulder‐to‐shoulder" with dive instructors like Zarda! Sometimes, to make women feel less weird about being harnessed to a strange man, Zarda would joke that he was gay “and ha[d] an ex‐husband to prove it." In 2010, a female client claimed Zarda groped her, and when he said, "Don't be ridiculous. I'm gay!" she complained to his boss, and Zarda was fired.

And if there's a better example of why we need regulation to deal with all the messy ways humans bump into each other every day, we can't think of one right now. Inherently dangerous recreational activity, check! Physical contact between staff and customers, check! Labor dispute, check! But please, tell us more, Republicans, about how awesome it would be if we just deregulated skydiving so it would be cheaper than a movie ticket!

The History

Most courts have held that sexual orientation discrimination is not the same as gender discrimination under Title VII of the 1964 Civil Rights Act. That's what the lower court held in Zarda's case, and when the Second Circuit first heard his appeal, it also ruled that he had no claim of discrimination "because of sex."

But in 2015, the Equal Employment Opportunity Commission (EEOC) held that orientation discrimination WAS illegal sex discrimination, so the entire Second Circuit agreed to rehear Zarda's case. And last year the Seventh Circuit also found that a gay professor was illegally fired in violation of Title VI.

Naturally, the Sessions Justice Department took the opposite position, arguing that firing the homos is A-okay. Fucking leprechauns, amirite?

So in this case, one branch of the federal government filed briefs backing Zarda, and one for his former employer. Which is fucking dysfunctional!

Talk Lawyer To Me!

In a 9-3 decision, the Second Circuit explicitly overruled its own prior holding and held today that discrimination based on the gender of a person's sex partners is discrimination based on sex. (Yeah, no duh!)

Welcome to the party, esteemed Judges! Make some sexy lawtalk at us.

Because one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex. Indeed sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted. Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.

Ooooh, LOGIC! Care to tell Jeff Sessions and his merry band of bigots that their argument is shit?

Relying on this language, [opponents] argue that a “truthful” response to an inquiry about why an employee was fired would be “I fired him because he is gay,” not “I fired him because he is a man.” But this semantic sleight of hand is not a defense; it is a distraction. The employer’s failure to reference gender directly does not change the fact that a “gay” employee is simply a man who is attracted to men. For purposes of Title VII, firing a man because he is attracted to men is a decision motivated, at least in part, by sex.


And Now for the Bad News

This case will almost certainly be appealed to the Supreme Court. Where it will run right into Alito, Thomas, Gorsuch and likely Roberts and Kennedy. But today is Nicetimes, and we're not going to dwell on that right now.

We'll just say this: If you live in Arizona, Florida, Indiana, Michigan, Missouri, Montana, North Dakota, Nevada, Ohio, Pennsylvania, Tennessee, Texas, or West Virginia, control of the Senate is in your hands. And if we pick up two seats, there aren't going to be any more Trump judges confirmed to the Supreme Court. Get it?

So vote like your life depends on it. BECAUSE IT DOES.

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[Zarda v. Altitude Express, Inc.]

Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.


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