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The first case was filed by Gerald Bostock, a gay man who was fired from a government program that helped neglected and abused children in Clayton County, Ga., just south of Atlanta, after he joined a gay softball league.
The second was brought by a skydiving instructor, Donald Zarda, who also said he was fired because he was gay. His dismissal followed a complaint from a female customer who had expressed concerns about being strapped to Mr. Zarda during a tandem dive. Mr. Zarda, hoping to reassure the customer, told her that he was “100 percent gay.”
Mr. Zarda died in a 2014 skydiving accident, and his estate pursued his case.
Most federal appeals courts have interpreted Title VII to exclude sexual orientation discrimination. But two of them, in New York and Chicago, have ruled that discrimination against gay men and lesbians is a form of sex discrimination.
In 2018, a divided 13-judge panel of the United States Court of Appeals for the Second Circuit, in New York, allowed Mr. Zarda’s lawsuit to proceed. Writing for the majority, Chief Judge Robert A. Katzmann concluded that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.”
In dissent, Judge Gerard E. Lynch wrote that the words of Title VII did not support the majority’s interpretation.
“Speaking solely as a citizen,” he wrote, “I would be delighted to awake one morning and learn that Congress had just passed legislation adding sexual orientation to the list of grounds of employment discrimination prohibited under Title VII of the Civil Rights Act of 1964. I am confident that one day — and I hope that day comes soon — I will have that pleasure.”
“I would be equally pleased to awake to learn that Congress had secretly passed such legislation more than a half-century ago — until I actually woke up and realized that I must have been still asleep and dreaming,” Judge Lynch wrote. “Because we all know that Congress did no such thing.”
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