The U.S. law that has protected workers from gender and racial bias for more than half a century should not be extended to cover gay and lesbian employees because that isn’t what Congress envisioned when it passed the bill, Trump administration lawyers told a federal appeals court.
Judges must interpret laws based on lawmakers’ intent, and Congress didn’t have the LGBT community in mind when it crafted Title VII of the Civil Rights Act of 1964, Justice Department attorney Hashim Mooppan argued on Tuesday in Manhattan. The agency made its case in defense of a New York skydiving company accused of firing a worker for being gay.
“Every circuit court for 50 years has said this isn’t covered,” Mooppan said at the hearing in Manhattan, referring to sexual orientation. He then compared the situation to an employer firing a worker for having an affair or being promiscuous, scenarios that he said have both been deemed legal.
The argument, before a rare full panel of the U.S. Court of Appeals for the Second Circuit, comes in one of a handful of employment-discrimination cases that may eventually reach the U.S. Supreme Court. Twenty states protect gay and lesbian workers from bias, and a ruling favorable to the plaintiffs in that court could extend such protections nationwide.
Title VII prohibits employers from discriminating on the basis of sex, race, color, national origin and religion. The plaintiff in the New York case, the estate of former skydiving instructor Donald Zarda, argues that the prohibition of sex-discrimination should be interpreted to cover sexual orientation.
They argue, for example, that a male worker who is fired for being attracted to men is confronting discrimination based on his sex, because he wouldn’t have been fired if he were a female attracted to men.
The Justice Department said that’s a false comparison because companies that fire workers over their sexual orientation would presumably do so whether they are male or female.
“Gay men and women are treated the same, and straight men and women are treated the same,” the Justice Department said in court documents.
Lambda Legal, which helped argue the case, said its interpretation of the law has been backed recently by several trial courts, as well as the U.S. Court of Appeals for the Seventh Circuit and the U.S. Equal Employment Opportunity Commission.
“No one should be fired, forced from their job, or passed over for promotions because they are lesbian, gay, or bisexual,” Greg Nevins, the employment-fairness project director for Lambda Legal, said in a statement after the hearing. “The Second Circuit can help fix this.”
The administration’s stance challenges a group of 50 companies and organizations — including Microsoft Corp., Alphabet Inc.’s Google and Viacom Inc. — that filed documents in June arguing discrimination based on sexual orientation should be illegal. A federal appeals court in Chicago in April ruled in favor of a fired worker in a similar case.
The case highlights the cultural shift in Washington after President Donald Trump’s election and spurred an unusual split between government agencies. The Justice Department intervened on behalf of the employer and the EEOC backed the plaintiff. One judge on Tuesday called the situation “awkward,” while another questioned why the Justice Department had been silent on the case until just recently.
The Zarda estate’s lawyer, Gregory Antollino, acknowledges that gays and lesbians may not have been the intended beneficiaries of the Civil Rights Act, but says Title VII was such a barebones provision that it’s open to a fair interpretation. Zarda, who sued in 2010, died in a base-jumping accident in Switzerland in 2014.
“Probably no members of Congress in 1964 were thinking about gay people, but neither were they thinking about how courts would interpret the sparse wording of Title VII in 50 years,” Antollino said in a court filing.
Precedent is on the employer’s side, with most federal appeals courts ruling against extending Title VII to cover sexual orientation, said Sharon Stiller, an employment lawyer in Rochester, New York, who isn’t involved in the case.
“If we continue revisiting precedent through modern eyes, then doesn’t that destroy precedent?” she said in a phone call.
In March, an appeals panel in Georgia rejected a gay security officer’s sex-discrimination claim, saying the argument should be pressed before Congress, not the courts.
The government is backed in Zarda’s case by the National Association of Evangelicals, which argued that the appeals court shouldn’t even consider the case because the states covered by the Second Circuit already have workplace protections for gays and lesbians. Corporations are largely addressing the issue on their own, without government intervention, the group added.
“Market forces are rapidly driving major employers to adopt such anti-discrimination policies even where not required by law,” the group said. “It cannot be healthy for the judiciary to permit itself to be reduced to — and seen as — a mere tell-tale for the prevailing cultural winds, at the expense of the rule of law.”
A panel of three appeals court judges ruled against Zarda in April, before he was granted the re-hearing before the full appeals court.
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