Thirteen Manhattan federal appeals judges heard an unusual dispute Tuesday between two parts of the government on whether federal law bans employment discrimination against gays in a case involving a fired Long Island parachute instructor.
The 90-minute argument pitted the Equal Employment Opportunity Commission, which thinks the prohibition on “sex” discrimination covers gays, against the Justice Department, which under the Trump administration has taken the position that it doesn’t.
The 2nd U.S. Circuit Court of Appeals judges peppered a Justice Department lawyer with questions about when and why the new administration decided to weigh in — he declined to answer — and one judge told EEOC lawyer Jeremy Horowitz the situation was “a little awkward.”
“Indeed, your honor,” Horowitz answered.
The case was filed on behalf of Donald Zarda, a now-deceased gay skydiving instructor fired in 2010 by Altitude Express, also known as Skydive Long Island in Calverton, and Ray Maynard of Southampton, the owner. A customer complained about parachuting with him. He had told her he was gay.
Only one federal appeals court has ruled that the Title VII’s ban on sex discrimination includes sexual orientation, but by agreeing to hear the case “en banc” — with all its active judges sitting — the influential 2d Circuit signaled that it might be ready to overturn precedents.
Typically, the EEOC sets policy on employment discrimination. The Justice Department filing of an opposing brief this summer, at the same time President Donald Trump opposed transgender people in the military, made the case a focus of conflict between the administration and gay rights advocates.
Justice Department lawyer Hashim Mooppan contended “sex” just doesn’t mean sexual orientation, and Congress has never acted on proposals to expand the law. The EEOC and Zarda’s lawyers said that if a man attracted to men is fired when a woman attracted to men wouldn’t be, that’s sex discrimination.
The judges seemed as divided as the government.
Chief Judge Robert Katzman wondered if firing someone for being “gay” wasn’t just a stand in for not complying with sexual stereotypes, which prior cases have prohibited as a form of sex discrimination. “Isn’t gay just shorthand for saying you’re attracted to other men,” he said.
But Judge Reena Raggi said a female gay instructor would likely have had the same problems as Zarda if she talked about her sexual orientation to a customer.
“It seems curious to say both a man and a woman would be fired and that’s sex discrimination,” she said.
Zarda’s federal claim was thrown out by Central Islip U.S. District Court Judge Joseph Bianco, and a jury rejected a claim based on New York discrimination laws. The company contended he was fired because of poor customer relations, not because he was gay.
More than a dozen groups supporting broader protections for gay men and women filed friend of the court briefs in the case. The judges didn’t say when they will rule.