Late last month, the Second Circuit US Court of Appeals heard arguments as to whether discrimination based on sexual orientation is prohibited under federal law. The Justice Department, led by Deputy Assistant Attorney General Hashim M. Moopan, argued before the court, taking the exact opposite position of the Equal Employment Opportunity Commission (EEOC), another agency of the executive branch. This rarity was matched by yet another curious incident: the Second Circuit, having already submitted a ruling against the plaintiff, decided to rehear the case – this time with all 13 circuit judges, rather than a three-judge panel. This happens less than once a year.
Zarda’s Case
The case, Zarda v. Altitude Express, is the latest in an ongoing suit filed in 2010 by Donald Zarda, a skydiving instructor who was fired after he told a female customer he was gay. Zarda told the woman, who was strapped to him, that she didn’t have to worry about being intimately close, as he was “100 percent gay.” Zarda died three years ago in a base-jumping accident in Switzerland, but his case lives on as a part of the cultural movement to legally protect LGBTQ people from workplace discrimination.
The Question
The central question is whether or not LGBTQ people are protected by Title VII of the Civil Rights Act. Most federal courts have ruled that sexual orientation is not included in the statute. Title VII specifically addresses discrimination on the basis of “sex, race, color, national origin, and religion.” Literalists have deemed sex a matter of wrongful stereotypes, limiting the statutory interpretations of the law.
New Direction
But earlier this year, the Seventh Circuit in Chicago issued a ruling that could shift the momentum of the judiciary. In Hively v. Ivy Tech, the appeals court overturned a ruling from a lower court and a ruling from a three-judge panel of the Seventh Circuit, which explicitly said it was only affirming the lower court’s decision because of precedent. In an en banc hearing, the court decided that sexual orientation could be protected by Title VII due to three different legal interpretations, as outlined on Slate.
Stereotyping
To begin with, according to Price Waterhouse v. Hopkins (1989), discrimination based on sex includes forms of sex-based stereotyping. Thus, discriminating against someone due to their sexual orientation is akin to discrimination based on that person’s “failure to conform to the female stereotype,” according to which women should date men and not other women.
Fairness
Secondly, the court found solace in the “comparative method” reading of the statute. According to this interpretation, discrimination against a woman because she is dating another woman is a form of sexism because if she were a man, the problem wouldn’t exist. If men can date women, then women should be allowed to do the same.
Loving
Lastly, according to Loving v. Virginia, an employer may not discriminate against an employee simply because he or she has chosen to associate with someone of a different race. According to the circuit judges, it’s not a great leap to suggest that this principal applies to people who choose to start relationships with someone of the same sex.
Bizarre Affair
The Second Circuit was thrown off by the split opinion emanating from the White House. The DOJ submitted an amicus brief in July, effectively saying that the EEOC does not “speak[…] for the United States” and “that Title VII does not reach discrimination based on sexual orientation.”
Chief Judge Katzmann wasted no time before asking Moopan about the DOJ’s decision to oppose another federal agency. The judge inquired as to why the Justice Department didn’t just allow the EEOC to handle the matter as is usually the case. Moopan replied, saying that the DOJ is one of the largest federal employers. This seems to imply that the agency has a special interest in discriminating against LGBTQ folks already working for the DOJ.
Looking Ahead
If the Second Circuit accepts the EEOC’s position that discrimination based on sexual orientation is prohibited by Title VII, the circuit courts will be more deeply divided. This would raise the chances of the Supreme Court hearing the case and putting the question to rest, once and for all.
