A Long Island skydiving company’s decision to fire a gay instructor is the focus of a controversial new Justice Department brief arguing that federal law doesn’t protect against workplace discrimination on the basis of sexual orientation.
The brief filed in the 2d U.S. Circuit Court of Appeals, coming the same week President Donald Trump opposed transgender people serving in the military, marks a second front of conflict emerging between the administration and LGBT-rights advocates.
The Justice Department, staking out a position contrary to the federal Equal Employment Opportunity Commission, contends that the language of Title VII banning discrimination on the basis of “sex” should not be extended to cover sexual orientation.
“Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts,” the Justice Department said in the brief, filed on Tuesday.
The brief was filed in a lawsuit on behalf of Donald Zarda, who was fired in 2010 by Altitude Express, also known as Skydive Long Island, and its owner, Ray Maynard, of Southampton, after a customer complained about her experience parachuting with him. He had told her he was gay.
Zarda, a Missourian living on Long Island for the summer while working at Skydive in Calverton, claimed he was fired because he was gay, and the company said his customer service was the problem. He died in 2014 in a jumping accident, and his estate has pursued the suit.
His federal claim was thrown out by Central Islip U.S. District Judge Joseph Bianco, and a jury rejected a claim based on New York discrimination laws. A three-judge 2d Circuit panel affirmed in April, relying on a 2000 2d Circuit case holding that Title VII doesn’t cover sexual orientation.
The full 2d Circuit court, which could overrule the 2000 case, has agreed to review Zarda’s case. Only one other federal appeals court has ruled discrimination against gays is covered, but the EEOC says it qualifies because it is driven by the sex of a worker’s “actual or desired partner.”
The Justice Department brief said the EEOC stance, adopted in 2015, flew in the face of the plain language of Title VII.
“Employees of one sex must be treated worse than similarly situated employees of the other sex, and sexual orientation discrimination simply does not have that effect,” the brief said.
More than a dozen groups have filed friend-of-the-court briefs taking the opposite stance, and liberal politicians and advocacy groups on Thursday quickly weighed in to denounce the Justice Department position.
“It’s simply unconscionable that lawyers, paid for with public tax dollars, are being employed to parse language pertaining to who can and cannot be discriminated against,” said David Kilmnick, head of the New York LGBT Network in Woodbury. “At the end of the day, discrimination is discrimination, regardless of who the victim is.”
“We will not allow the President to drag us back in time and roll back the civil rights of LGBTQ workers solely based on their sexual orientation without a fight,” said Sen. Kirsten Gillibrand (D-NY).
Gregory Antollino, the lawyer for Zarda’s estate, said the official government stance is always influential. “But I have confidence in my position,” he said.
The lawyer for the parachute company, Saul Zabel, said that even if the 2d Circuit wants to overturn its precedent and protect sexual orientation, Zarda’s suit is the wrong case for it.
Zabel said the trial evidence showed Zarda — who was hired three times despite being openly gay — was fired due to inappropriate behavior and conversation during a “tandem jump” with the student who complained, and jurors rejected his state law claim that he was fired for being gay.
Oral argument in the case is scheduled for Sept. 26.