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.