Trump admin fights for employers’ right to fire gay workers

The Department of Justice has inserted itself into a case that could have major repercussions for anyone that isn’t straight in the workplace

The U.S Department of Justice has sent lawyers to the federal court to assert that the law does not ban discrimination against gay employees.

The case Zarda v. Altitude Express was heard yesterday (September 26) – as Reuters reports, lawyers for the Trump administration are supporting Altitude Express Inc, a skydiving company, while another federal agency supports the late former instructor Donald Zarda. Zarda filed the lawsuit back in 2010, accusing his former employer of firing him after he told a customer he was gay, who subsequently complained.

Though Zarda died in a base jumping accident, his estate executors continue with the case.

The Court of Appeals is set to make the ruling on whether Title VII of the 1964 Civil Rights Act protects workers from discrimination based on their sexuality. As it stands, the law has been used to ban discrimination based on race, sex and religion, but the lawyers from Trump’s base want to omit sexuality from the law, asserting that the act would have been more explicit if it meant to cover it. The Departmnt of Justice team argue that the law, which has protected workers from racial and gender discrimination across five decades, cannot extend over sexual orientation because the original lawmakers didn't envision it that way.

“Employers under Title VII are permitted to consider employees’ out-of-work sexual conduct,” Hashim Mooppan, the Department of Justice attorney, said in the Manhattan court, according to Vice News. “There is a common sense, intuitive difference between sex and sexual orientation.”

The Equal Employment Opportunity Commission, another federal agency, appeared to support the Zarda side, facing off against the Department of Justice. One of the 13 judges present at the case commented on how “awkward” it was that two factions of the federal government were divided on the issue.

According to Buzzfeed, EEOC lawyer Jeremy Horowitz told the court, “Sex stereotyping says that if you are a man attracted to a man, or a woman attracted to a woman, you’re not behaving the way those genders are supposed to behave.” The EEOC has consistently fought to recognise sexual orientation under Title VII.

During the Trump administration and under Attorney General Jeff Sessions, LGBT rights have been under increasing pressure: protections for transgender students, laid down in the Obama era, were reversed, and attempts to narrow the meaning of Title VII to exclude sexuality have been made. Support from the current administration was also recently given to a Colorado bakery which refused to bake a wedding cake for a gay couple based on religious beliefs.

However, there are several recent cases similar to the Zarda Vs Altitude Express trial where the Justice Department has not asserted itself. As Pink News reports, one of these is Hively Vs Ivy Tech Community College, where judges ruled in favour of the college professor pushed out of her job for being a lesbian.

The Tuesday case was heard once again, this time with the full panel of judges in the 2nd U.S Circuit Court of Appeals, after three judges ruled against Zarda back in April. Should Zarda’s case triumph, it would strengthen LGBT protections under the law.