‘Awkward': Trump Team at Odds Over Sexual Orientation Bias

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By Chris Opfer

President Donald Trump’s administration Sept. 26 found itself on both sides of the debate over whether a federal ban on sex discrimination in the workplace includes sexual orientation bias.

Equal Employment Opportunity Commission lawyer Jeremy Horowitz told the U.S. Court of Appeals for the Second Circuit that sexual orientation discrimination is a form of sex bias already covered under federal law. Justice Department attorney Hashim Mooppan, however, urged the court to take the opposite position—that Congress didn’t intend to include gay and lesbian discrimination in the civil rights law—on what has become a hot-button issue.

“It’s a little bit awkward for us to have the government on both sides of this case,” Judge Rosemary Pooler said during oral arguments before the full Second Circuit ( Zarda v. Altitude Express, Inc., 2d Cir., No. 15-3775, oral arguments 9/26/17).

Observers largely expect the U.S. Supreme Court to eventually weigh in on the issue.

“This is a dress rehearsal for the Supreme Court,” Rachel Tiven, chief executive officer for Lambda Legal, told Bloomberg BNA following the arguments. “We already have a circuit split and all roads lead to Supreme Court review.”

The question is which case the justices eventually choose to consider.

The full Seventh Circuit in April overturned its own precedent and held that sexual orientation bias necessarily is sex discrimination. An Eleventh Circuit panel went the other way on the question a month earlier. The Georgia security guard who in that case said she was fired because of her sexual orientation has already asked the Supreme Court to reconsider that decision.

The Second Circuit case centers on Donald Zarda, who allegedly was fired from his job as a skydiving instructor on Long Island after telling a customer that he is gay. Zarda, who died after the lawsuit was filed, said he mentioned his sexual orientation in an attempt to calm the customer after she became uncomfortable when the two were strapped together before jumping out of a plane.

Three judges on the Second Circuit said in April the court’s prior decisions finding that Title VII of the 1964 Civil Rights Act doesn’t cover sexual orientation bias prevented them from changing their minds on the issue. A separate three-judge panel reached the same decision in March in a case involving a gay marketing director who said he was harassed on the job.

Apples and Oranges

Judge Reena Raggi summarized the central issue that the court grappled with during nearly two hours of arguments.

“The concern we have here is whether we have a discrimination that fits into sex discrimination or if we have something else,” Raggi said. “This may be a different kind of discrimination that we may wish to prohibit, but that is not sex discrimination.”

Attorneys on both sides spent much of their time debating whether various employees might be considered similarly situated to Zarda for the purpose of comparison. They said that comparison is key to determining whether Zarda’s sex was a basis for his firing.

Lawyers for Zarda’s estate, the EEOC, and Lambda Legal argued that question was similar to the one the Supreme Court faced 50 years ago when it struck down a state ban on interracial marriage in Loving v. Virginia, 388 U.S. 1 (1967). They said Zarda was discriminated against because he was attracted to men, in the same way that the state law discriminated against people who wanted to marry outside of their race.

But the Justice Department and Saul Zabell, who is representing Altitude Express Inc., said the company made no judgment on Zarda’s gender when it allegedly decided to fire him for the comment. They argued that a lesbian skydiving instructor would have been fired for the same comment.

“This is a judgment about sexual orientation, not sex,” Mooppan told the court.

Greg Nevins, a Lambda Legal attorney, said decisions based on sexual orientation are necessarily based on sex. He gave the hypothetical example of a gay man fired for being married to another man named “Pat.”

“You have to know that Pat is Patrick in accounting, not Patricia in accounts receivable,” Nevins said.

Different Strokes

The judges also mulled a related issue that sometimes seemed to muddle the discussion of whether sexual orientation bias is banned generally under federal law. Zarda alleged alternatively that the company fired him because he didn’t abide by certain sexual stereotypes attributed to men.

The Supreme Court in 1989 said sex discrimination law also bans sex stereotyping, or discrimination or harassment against a worker because he or she doesn’t comply with traditional gender norms ( Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)). The problem for some LGBT advocates is that a similar ruling for Zarda would sidestep the question of whether sexual orientation discrimination is sex discrimination.

The Justice Department’s Mooppan told the court that sex stereotyping claims usually involve some type of clear animus against a certain sex. He also said there are “physiological differences” between men and women that employers can legally take into account, including by requiring workers to use same-sex bathrooms on the job.

“Men and women are not similarly situated in all respects,” Mooppan said.

To contact the reporter on this story: Chris Opfer in New York at copfer@bna.com

To contact the editor responsible for this story: Terence Hyland at thyland@bna.com

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