“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,” the appellate court added, “making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.”
The ruling, written by the Second Circuit’s chief judge, Robert A. Katzmann, was joined, in part or whole, by nine other judges. Three judges dissented. In addition to Judge Katzmann’s decision, seven judges wrote separate opinions, concurring and dissenting.
The appeals court only rarely issues decisions in what is known as the en-banc court, in which all eligible judges, in this case 13, participate. Usually, the appeals court issues rulings through three-judge panels.
The issue, which had divided federal appeals courts around the country, centered on the firing of Donald Zarda, by Altitude Express. Mr. Zarda had told a female student as they prepared for a sky-diving jump that he was “100 percent gay,” and her boyfriend complained to the school about the encounter.
Mr. Zarda said that he had made the statement to the woman because she had seemed uncomfortable with the close physical contact involved in her being so tightly strapped to her instructor.
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