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Sexual-orientation bias violates law, appeals court says

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NEW YORK — The LGBT community and its corporate supporters won a legal victory over the Trump administration as a federal appeals court ruled that firing workers over their sexual orientation is a form of sex discrimination.

The landmark Civil Rights Act of 1964, which bars workplace discrimination on the basis of sex, race, color, national origin and religion, covers lesbian, gay, bisexual and transgender employees who complain that they’re discriminated against due to sexual preference, the federal appeals court in Manhattan said Monday.

At least two federal appeals courts have banned discrimination over sexual orientation, while a third appeals court has reached a different conclusion, setting up a possible Supreme Court appeal.

“Sexual orientation discrimination — which is motivated by an employer’s opposition to romantic association between particular sexes — is discrimination based on the employee’s own sex,” the appeals court said.

The case was filed by a skydiving instructor, Donald Zarda, who claimed he was fired by Altitude Express because he was gay. He argued that Title VII of the Civil Rights Act covers sexual orientation. Zarda, who sued in 2010, died in a base-jumping accident in Switzerland in 2014. His estate and relatives carried on with the case.

A panel of three appeals court judges ruled against Zarda in April, before he was granted the rehearing before the full appeals court.

The Trump administration filed a legal brief in support of the skydiving company, based on New York’s Long Island. The U.S. argued that courts must take legislative intent into consideration, and that Congress didn’t have the LGBT community in mind when it crafted the legislation.

The administration’s stance challenges a group of 50 companies and organizations — including Microsoft, Alphabet’s Google and Viacom — that filed documents in June arguing discrimination based on sexual orientation should be illegal.

The government’s decision to oppose a gay worker has been cited by Trump’s critics as evidence that he’s pandering to religious conservatives. The president’s supporters say the courts need to be reined in and shouldn’t be extending rights that only Congress can establish.

Workers can be fired for being gay or lesbian in more than half of U.S. states, and Congress for years has declined to pass legislation protecting such employees nationwide. Attorney General Jeff Sessions, a former U.S. senator from Alabama, was one of the lawmakers who sought to block such legislation. He also voted to ban same-sex marriage nationwide and sought to bar LGBT Americans from the military.

Title VII has been broadened by the courts over the years. The Supreme Court in 1986 ruled that the law, previously limited to “tangible economic discrimination,” also prohibited sexual harassment. A few years later, the high court determined the law barred gender stereotyping in the workplace, in a suit brought by a woman who claimed she’d been denied partnership at an accounting firm because her clothing and appearance didn’t conform to sex stereotypes.

But that’s where the courts drew the line. In 2000, a federal appeals court ruled that the addition of gender stereotypes couldn’t be used to “bootstrap” protection based on sexual orientation.

A handful of gays and lesbians have filed suits in recent years, with mixed success.

In March 2016, the federal appeals court in Manhattan ruled that while discrimination based on sexual orientation is “reprehensible,” it doesn’t violated Title VII. In March 2017, the appeals court in Atlanta ruled against a lesbian who was fired from a hospital, and the Supreme Court declined to hear the case. A month later, the appeals court in Chicago ruled in favor of a lesbian who was fired by a Christian college.

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