In arguments before the 2nd Circuit Court of Appeals on Tuesday, Lawyers for the Trump administration argued that discrimination against gay workers is legal.
The Department of Justice and the Equal Employment Opportunity Commission (EEOC) faced off against each other in Zarda v. Altitude Express, Inc., a case concerning a man who was fired from his job as a skydiving instructor because of his sexual orientation.
According to Freedom For All Americans (FFAF), the en banc hearing (meaning before the full 2nd Circuit court) is a rare phenomenon and a strong indicator of the case’s significance. The court is set to reconsider a 17-year-old legal precedent stating that employment discrimination based on sexual orientation is not prohibited under federal law.
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.
A lawyer for the federal Equal Employment Opportunity Commission, Jeremy Horowitz, sided with the sky diver, arguing that federal law did prohibit employers from discriminating against employees because they are gay.
But a deputy assistant attorney general with the Justice Department, Hashim M. Mooppan, explained that, under federal law, employers were absolutely free “to regulate employees’ off-the-job sexual behavior,” meaning they could discriminate against employees for adultery, promiscuity or sexual orientation.
Even as the judges were struggling with the underlying legal question, they seemed unsure of what to make of the two government lawyers, each vigorously arguing opposite points.
When arguments concluded, it seemed inevitable that the court would agree with the EEOC, reject the DOJ’s wackadoodle theories, and find that Title VII already proscribes anti-gay employment discrimination. After Tuesday’s performance, the Justice Department’s involvement in the case may have actually swung a judge or two away from its position; its flagrantly political intrusion seemed to irk even the Republican appointees. Anti-gay activists may have taken control of the DOJ—but they seem unlikely to persuade the 2ndCircuit that America’s gay employees don’t deserve civil rights.