Civil Rights Act Protects Gay Workers, Appeals Court Rules
February 27, 2018 by admin
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The 10-3 ruling by the Second Circuit stemmed from Altitude Express’s dismissal of a Long Island sky-diving instructor, Donald Zarda, in 2010. As Mr. Zarda was preparing that year for a tandem sky-dive with a female student, he told her that he was “100 percent gay.” Her boyfriend later complained to the school about the comment.
Mr. Zarda said he had made the remark to soothe the woman, who seemed uncomfortable with being so tightly strapped to him during the dive. Mr. Zarda filed a lawsuit, eventually claiming that his firing violated Title VII. Two courts in New York, including a three-judge panel of the Second Circuit, initially ruled against him.
In 2015, Mr. Zarda died in a sky-diving accident. His appeal, however, continued, and the legal landscape started changing. The E.E.O.C., under President Barack Obama, issued a ruling in a separate matter, finding for the first time that “sexual orientation is inherently a ‘sex-based consideration’” and should be protected by the law.
In July, the Trump administration decided to weigh in on the Zarda case. On the same day that Mr. Trump suggested on Twitter that transgender people would be barred from serving in the military, Justice Department lawyers filed a friend of the court brief in Mr. Zarda’s case, arguing that Title VII protections did not extend to sexual orientation.
In its brief, the Justice Department said that the E.E.O.C. was “not speaking for the United States.”
The Justice Department’s intervention in Mr. Zarda’s case led to sharp criticism from groups like the American Civil Liberties Union, which called the brief a “gratuitous and extraordinary attack on L.G.B.T. people’s civil rights.”
The Second Circuit’s ruling on Monday rejected the Justice Department’s position.
In a majority opinion joined at least in part by eight other judges, Chief Judge Robert A. Katzmann wrote, “Since 1964, the legal framework for evaluating Title VII claims has evolved substantially,” adding that it now included expanded protections against discrimination based on factors like “sex stereotypes.” The opinion said that the law should be read to include sexual orientation.
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“Sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted,” Judge Katzmann wrote, “making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.”
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A 10th judge, José A. Cabranes, agreed with the outcome, but not Judge Katzmann’s reasoning. The appeals court rarely issues decisions through what is known as the en-banc court, in which all eligible judges participate. Typically, it issues decisions through three-judge panels.
Judge Gerard E. Lynch, one of the dissenting judges, said in an opinion that he came to his decision “regretfully,” but that Congress had not included sexual orientation on its list of grounds to outlaw bias in the workplace.
“When interpreting an act of Congress,” Judge Lynch wrote, “we need to respect the choices made by Congress about which social problems to address, and how to address them.” Many states, he noted, had “recognized the injustice of discrimination on the basis of sexual orientation.”
“I hope that one day soon Congress will join them, and adopt that principle on a national basis,” he wrote. “But it has not done so yet.”
Justice Department officials have previously said that Congress, and not the courts, should decide who is protected under the law.
Following the ruling on Monday, Devin O’Malley, a Justice Department spokesman, adhered to that message, saying that while the department was “committed to protecting the civil and constitutional rights of all individuals,” it was also “committed to the fundamental principle that the courts cannot expand the law beyond what Congress has provided.”
In the past year or so, two separate federal appeals courts have issued conflicting rulings on Title VII. Last March, a divided three-judge panel of the 11th Circuit Court of Appeals in Atlanta ruled that Title VII’s reference to sex did not encompass discrimination based on sexual orientation. One month later, however, the Seventh Circuit in Chicago, by an 8-to-3 vote, held that bias based on sexual orientation was in fact “a form of sex discrimination.”
In December, the Supreme Court denied a request to hear an appeal filed by the plaintiff in the Atlanta case. But with Monday’s ruling essentially in line with the finding by the Seventh Circuit in Chicago, the appeals courts’ varying viewpoints may be enough to prompt Supreme Court review.
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Saul Zabell, the lawyer for Altitude Express, said he was pleased that the ruling fixed “a glaring legislative gap in fundamental human rights,” but added that he was also “disappointed that the panel chose to ignore the facts of underlying matter” and “exceeded their judicial mandate.”
In a brief statement, Eric T. Schneiderman, the New York State attorney general, who filed an amicus brief in the case, said on Monday: “No one should face discrimination because of their sexual orientation — and I am pleased that the Second Circuit has sent a clear statement in support of equal justice today.”
Bill Moore, a co-executor of Mr. Zarda’s estate, also praised the ruling.
“Today’s victory is a wonderful step forward for the country as a growing number of Americans take a stand against anti-L.G.B.T.Q. employment discrimination,” Mr. Moore said in a statement. “I wish Don were here to see how he and his case have advanced the movement for L.G.B.T.Q. equality.”
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Schools in all 55 West Virginia counties closed for a third day amid teacher strike
February 27, 2018 by admin
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CHARLESTON, W.Va. — Thousands of striking schoolteachers who have shut down West Virginia classrooms for days are demanding a face-to-face meeting with the governor and legislative leaders on their pay grievances, a union official said Monday.
Teachers rallied Monday outside the state Capitol amid pledges to continue the walkout that began Thursday, unless their complaints are heard. The state’s average teacher pay ranks among the lowest in the nation and teachers are balking at approved increases they say are too stingy.
The teachers, represented by the American Federation of Teachers, the West Virginia Education Association and the West Virginia School Service Personnel Association, want Gov. Jim Justice and leaders from the state Senate and House to meet with them on their complaints.
Until that happens, the strike by teachers in all 55 counties will continue Tuesday, said Christine Campbell, president of the AFT’s West Virginia chapter.
“You’ve got to come to the table. We can’t have five different conversations,” Campbell said. Until everyone get together at once, she said, “we’re not going back” to the classroom.
She said there have been separate talks with various leaders but not with the governor, who spoke at town-hall style meetings Monday in the cities of Wheeling, Martinsburg and Morgantown. She said union officials have spoken at times with the governor’s staff.
West Virginia’s governor has signed across-the-board teacher pay raises of $808 next year and $404 percent the following two years. But teachers say the increases aren’t enough, especially as health care costs rise.
On Monday, Justice talked with teachers and others at three stops in the northern area of West Virginia, where he promised to launch a task force to address education issues within a week to 10 days. He also urged the teachers to return to work Tuesday.
The governor was occasionally heckled from a crowd of more than 150 in Morgantown. There he said he doubted they could get more from their walkout than the 2 percent raise he and the Legislature had already approved for next year.
Justice also said bigger raises would follow if numbers next year confirm the state’s economic turnaround. Teachers should push for an increased severance tax on natural gas to permanently fix funding for the insurance program for them and other public employees, he added.
In other developments, State schools Superintendent Steve Paine has said a decision would be made Monday whether to add an item to the state Board of Education meeting Tuesday that would discuss possible legal action against teachers. Paine has said the work stoppage is illegal and disruptive to student learning.
No such agenda item had been added as of Monday afternoon.
The walkout was in its third day Monday. Missed class time is automatically added to the end of the school year.
The Public Employees Insurance Agency, a state entity that administers health care programs for public workers, including teachers, has agreed to freeze health insurance premiums and rates for the next fiscal year for state workers.
The House of Delegates has passed separate legislation to transfer $29 million from the state’s rainy day fund to freeze those rates and to apply 20 percent of future general fund surpluses toward a separate fund aimed at stabilizing the employees’ insurance agency. Both bills are now pending in the state Senate.
Teachers are worried the proposed solution is only temporary or worse, especially if the state surplus turns out to be minimal.
More: West Virginia teachers strike over pay, benefits