The Department of Justice (DOJ) has stepped into a significant private employment case, urging a federal appeals court to rule that civil rights law does not bar job discrimination based on sexual orientation.
The unsolicited “friend-of-the-court” brief filed with the U.S. Court of Appeals for the 2nd District Wednesday, July 26 came the same day as Trump’s tweets banning transgender people from serving in the military.
The DOJ’s action goes against the position taken by the Obama administration’s Department of Justice and the Equal Employment Opportunity Commission (EEOC). Both viewed that Title VII of the Civil Rights Act of 1964, which banned employment discrimination on the basis of sex, also applies to sexual orientation, though the law itself does not say that. Title VII does not define the term sex and does not mention sexual orientation.
The DOJ’s main argument states that since Congress has not included sexual orientation in the law, the courts can’t act on their own to include it.
The question of sexual orientation discrimination goes beyond employment law, and affects Title IX of the Education Amendments of 1972—a powerful tool used by the Obama administration to justify its efforts to enforce bathroom and locker room equity for transgender students.
The case of Donald Zarda
The DOJ’s action comes from a case involving a skydiving instructor who claimed he was fired by his employer based on his sexual orientation.
Donald Zarda’s problems began in 2010 when Rossana Orellana and her boyfriend, David Kengle, purchased a tandem skydive from Altitude Express. Zarda was Orellana’s instructor and had informed her that he was gay and had recently gone through a break up.
“Zarda often told female clients of his sexual orientation—especially when accompanied by a husband or boyfriend—to mitigate any awkwardness that might arise from the act that he was strapped so tightly to the woman,” according to court documents.
Zarda was fired after Kengle, the boyfriend, complained to Altitude Express. As the court said, he was terminated on the grounds that he “failed to provide an enjoyable experience for the customers.”
Before the case went to trial, Zarda died in a skydiving accident. Two co-executors of his estate replaced him as plaintiffs in Zarda v Altitude Express.
At trial, a district court judge ruled that while Zarda could file the complaint under New York state law, the Title VII discrimination complaint was invalid as the law did not cover sexual orientation.
On appeal, a panel of the 2nd District Court of Appeals agreed with the district court’s ruling based on legal precedent set by an earlier case in the 2nd District appellate court, saying that only the full court of appeals could reconsider the case.
That is happening now, and the DOJ has taken the opportunity to make its argument against a broad interpretation of Title VII.
However, appeals courts have often disagreed on this question, and it will likely go before the Supreme Court, which has not taken a position in the matter.
LGBTQ groups and activists, along with religious organizations, have filed their own friend-of-the-court briefs and are watching the case closely, as it will be a major test of how extensive existing discrimination legislation can be applied.
Read the DOJ brief here and the ACLU’s brief here.
Read the U.S. Court of Appeals for the 2nd District’s initial ruling here.
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