Though the state of New Jersey’s Law Against Discrimination explicitly provides protection based on sexual orientation, the same is not true of federal law, and that has led to confusion, as well as to litigation. One recently-decided case involved a gay man who sued his employer for discriminating against him based upon his sexual orientation, and the federal appeals court’s decision in favor of the employee is an indication that more and more cases will include sexual orientation as a protected class.

The recent case involved Donald Zarda, who worked as a skydiving instructor for a company called Altitude Express. Zarda had been fired after a client complained about his behavior, and he in turn filed a complaint with the Equal Employment Opportunity Commission alleging sex discrimination in violation of Title VII. An appeal was filed following the decision in the initial case, and last week the 2nd US Circuit Court of Appeals made clear that employment discrimination based on sex extends to sexual orientation, writing, ” 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.”

This is the second time that an appeals court has agreed with the EEOC in interpreting existing civil rights law to include sexual orientation. The Justice department, under the Trump administration, has argued against this stance. Devin O’Malley, a Justice Department spokesman, maintains that though the government is “committed to protecting the civil and constitutional rights of all individuals,” they feel that the inclusion of discrimination based on sexual orientation in the law’s protections represents an expansion of the law as it is written. The attorneys for the Justice Department acknowledged that society is changing in its attitudes, but that since Congress has declined to amend Title VII, it should not be interpreted that sexual orientation should automatically be adopted as a protected class.

This Federal decision is limited to the Second Circuit, which now joins the Seventh Circuit. It will not become national law until either all of the circuits rule in favor or, more likely, the US Supreme Court rules on the issue. In the meantime, New Jersey employees do not need a federal court to interpret the laws on their behalf: the New Jersey Law Against Discrimination already expressly provides that employment discrimination based on sexual orientation and sexual identity is illegal. If you believe that you have been the victim of employment discrimination based on your sexual orientation, identity or any other protected characteristic, we can help. Contact our office today to set up a consultation to learn more about your rights.