A Department of Justice lawyer argued before the Second Circuit of the Appeals that the Civil Rights Act of 1964 does not protect LGBT citizens from being fired for sexual orientation. The argument is in the case of Donald Zarda, who claims his former employer, Altitude Express, fired him for being gay. The stance taken by the U.S. Department of Justice is a departure from previous presidents’ administrations position on such matters.
The Equal Employment Opportunity Commission had sided with Zarda before the DOJ got involved, saying that LGBT employees are protected by Title VII of the Civil Rights law.
“Employers under Title VII are permitted to consider employees’ out-of-work sexual conduct,” DOJ lawyer Hashim Mooppan told the judges. “There is a common sense, intuitive difference between sex and sexual orientation.”
Arguments came as the full 13-judge Second Circuit considers an earlier ruling that went in favor of Zarda’s former employer. The Seventh Circuit Court of Appeals ruled earlier this year that people can’t be fired for engaging in homosexual activity. The same court affirmed that Title VII does not, in fact, cover sexual orientation, something that has not been addressed previous to the latest case and the current administration.
The move by the DOJ goes against a 2016 campaign promise made by then candidate Donald Trump. His new Attorney General Jeff Sessions i9s now at the helm at the DOJ. The department has filed several amicus briefs against LGBT protections, including taking sides in an upcoming Supreme Court case, Masterpiece Cake Shop v. Colorado Civil Rights Commission. That case concerns Jack Phillips, who was found guilty in Colorado for violating that state’s anti-discrimination law when he refused to make a wedding cake for a gay couple, citing a violation of his religious beliefs. The DOJ actions went against lower court rulings in that case.
“Trump touted his pro-LGBTQ credentials last year [but] one thing that’s preserved what’s left of his approval rating is that there are people who are happy with his administration fighting the good fight for them,” said attorney Greg Nevins of Lambda Legal, who is representing Zarda in his case. “It’s going to play well for them, even if the DOJ is weighing in on losing sides and their arguments are contrary to even conservative notions.”