The case highlights the cultural shift in Washington after President Donald Trump’s election and spurred an unusual split between government agencies. The Justice Department intervened on behalf of the employer and the Equal Employment Opportunity Commission backed the plaintiff.

‘Sparse Wording’

The Zarda estate’s lawyer, Gregory Antollino, acknowledges that gays and lesbians may not have been the intended beneficiaries of the Civil Rights Act, but says Title VII was such a bare-bones provision that it’s open to a fair interpretation. Zarda, who sued in 2010, died in a base-jumping accident in Switzerland in 2014.

"Probably no members of Congress in 1964 were thinking about gay people, but neither were they thinking about how courts would interpret the sparse wording of Title VII in 50 years," Antollino said in a court filing.

Precedent is on the employer’s side, with most federal appeals courts ruling against extending Title VII to cover sexual orientation, said Sharon Stiller, an employment lawyer in Rochester, New York, who isn’t involved in the case.

"If we continue revisiting precedent through modern eyes, then doesn’t that destroy precedent?" she said in a phone call.

In March, an appeals panel in Georgia rejected a security officer’s sex-discrimination claim, saying the argument should be pressed before Congress, not the courtsd.

The government is backed in the case by the National Association of Evangelicals, which argued that the appeals court shouldn’t even consider the case because the states covered by the Second Circuit already have workplace protections for gays and lesbians. Corporations are largely addressing the issue on their own, without government intervention, the group added.

"Market forces are rapidly driving major employers to adopt such anti-discrimination policies even where not required by law," the group said. "It cannot be healthy for the judiciary to permit itself to be reduced to -- and seen as -- a mere tell-tale for the prevailing cultural winds, at the expense of the rule of law."

A panel of three appeals court judges ruled against Zarda in April, before he was granted the re-hearing before the full appeals court.