U.S. Second Circuit - The FindLaw 2nd Circuit Court of Appeals Opinion Summaries Blog

Justice Dept. Seeks to Stop LGBT Ruling

The Trump Administration fired two shots across the bow of the LGBT community, aiming to set back Obama-era rulings that protected soldiers and workers.

The same day Trump announced that the U.S. military would not allow transgender people in the armed forces, the Justice Department told a federal court that anti-discrimination laws should not protect people at work based on their sexual orientation.

In Zarda v. Altitude Express, Inc., the Justice Department says that Title VII of the Civil Rights Act protects workers based on their sex -- not their sexual orientation.

A Retreat

The military has backed off Trump's Twitter announcement, saying transgenders may serve for now. But the double-barreled attack on the LGBT community is still ringing in the federal courts.

In Hively v. Ivy Tech Community of Indiana, the U.S. Seventh Circuit Court of Appeals ruled in April that "discrimination based on sexual orientation is a form of sex discrimination." It was the first time a federal appeals court had extended Title VII to the LGBT community.

Justice Department is trying to keep the U.S. Second Circuit of Appeals from going that way, too. Justice lawyers say every other circuit has decided that sexual orientation is not a basis for job discrimination claims.

Ultimately, the amicus says, it is an issue for Congress. But so far, Congress has not changed Title VII to include sexual orientation as a protected class since the Civil Rights Act was created in 1964.

Notable Changes

"To be sure, there have since been notable changes in societal and cultural attitudes about such discrimination, but Congress has consistently declined to amend Title VII in light of those changes, despite having been repeatedly presented with opportunities to do so," Assistant Attorney General Chad A. Readler argued in the case.

Donald Zarda, a skydiving instructor, filed his discrimination suit after he was fired when a customer complained he was gay. Zarda died later in a skydiving accident, and his representatives are pursuing the case.

A three-judge panel dismissed the complaint, however, saying discrimination against gays is not sex discrimination under Title VII. The Second Circuit agreed to review the case en banc.

Meanwhile, the appeals court in another case recently "opened the door" to a gay employee who was harassed at work to pursue a Title VII claim against his employer.

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