A U.S. law that has protected workers from gender and racial bias for more than half a century shouldn’t be extended to cover gays and lesbians, Trump administration lawyers told a federal appeals court.
Congress didn’t have the LGBT community in mind when it passed the Civil Rights Act of 1964, and judges must interpret the law based on lawmakers’ intent, Justice Department attorney Hashim Mooppan said Tuesday.
"Employers under Title VII are permitted to consider employees’ out-of-work sexual conduct," he said.
The argument, before a rare full panel of the U.S. Court of Appeals for the Second Circuit in Manhattan, 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.
The plaintiff, the estate of former skydiving instructor Donald Zarda, argues that Title VII of the Civil Rights Act, which prohibits employers from discriminating on the basis of sex, race, color, national origin and religion, should be interpreted to cover sexual orientation as well.
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 would not have been fired if he were a female attracted to men.
False Comparison
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.
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.