Justice Dept. targets legal effort to protect LGBT workers from bias

President Donald Trump’s administration came out against an effort by civil rights groups to ban workplace discrimination against gays and lesbians nationwide, putting him at odds with some of the country’s most valuable companies.

The Justice Department on Wednesday urged the federal appeals court in Manhattan to reject a lawsuit by a former skydiving instructor who claims he was fired for being gay. Rights groups argue workers should be protected by existing federal law against gender bias by employers.

The Justice Department doesn’t agree. It essentially argues that laws against workplace gender bias don’t apply to the LGBT community because companies that fire workers over their sexual orientation will presumably do so whether they are male or female.

“An employer who discriminates based on sexual orientation alone does not treat similarly situated employees differently but for their sex,” the Department of Justice, which isn’t a party in the suit, said in a brief. “Gay men and women are treated the same, and straight men and women are treated the same.”

The administration’s stance challenges a group of 50 companies and organizations — including Microsoft Corp., Alphabet Inc.’s Google and Viacom Inc. — that filed a brief in the same case in June arguing discrimination based on sexual orientation should be illegal, even if that would lead to more employee lawsuits. It also comes on the heels of Trump’s promise earlier Wednesday to ban transgender Americans from serving in the military, leading to protests in cities including New York and Washington.

‘Gratuitous Attack’

“On the day that will go down in history as Anti-LGBT Day, comes one more gratuitous and extraordinary attack on LGBT people’s civil rights,” James Esseks, director of the American Civil Liberties Union’s LGBT & HIV Project, said in a statement.

The plaintiff, the estate of former skydiving instructor Donald Zarda, argues that Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating on the basis of sex, race, color, national origin and religion, should simply be interpreted by the courts to apply to LGBT workers. Zarda, who started the litigation in 2010, died in a base-jumping accident in Switzerland in 2014.

“This court should reaffirm its precedent holding that Title VII does not prohibit discrimination because of sexual orientation,” according to the filing.

Sarah Warbelow, legal director of the Human Rights Campaign, said the DOJ’s filing was “politically-driven and legally specious.”

“Attacks against the LGBTQ community at all levels of government continue to pour in from the Trump-Pence Administration,” Warbelow said in an email. “In one fell swoop, Trump’s DOJ has provided a roadmap for dismantling years of federal protections and declared that lesbian, gay, and bisexual people may no longer be protected by landmark civil rights laws.

Conservative Groups

The Christian Legal Society and National Association of Evangelicals also weighed in on Wednesday, pointing out that courts have previously rejected interpreting “sex” in the meaning of Title VII to include “sexual orientation.” The groups also said that Zarda has other legal remedies in New York and that many companies already offer protection without a federal law.

“Market forces are rapidly driving major employers to adopt such anti-discrimination policies even where not required by law,” the conservative groups said. “Judicial innovation should be approached with all the more caution in a complex area that cries out for the benefit of the legislative process.”

A ruling in favor of Zarda, who worked at Altitude Express Inc. in New York, could effectively ban workplace discrimination against LGBT workers nationwide, a goal that’s repeatedly evaded Democratic members of Congress who’ve failed to gain enough support for such a bill.

The New York appeals court is slated to hear arguments in September. The question has already divided other courts and could reach the U.S. Supreme Court.

Protected Class

LGBT workers in 28 U.S. states can be fired over their sexual orientation, according to the ACLU. Some cities and companies have implemented their own protections.

Zarda and other LGBT workers were backed in their case by a trio of Democratic-led states in a brief filed by New York Attorney General Eric Schneiderman.

Some appeals courts remain unpersuaded by arguments like Zarda’s. In March, an appeals panel in Georgia rejected a security officer’s sex-discrimination claim.

“Because Congress has not made sexual orientation a protected class,” Judge William Pryor wrote in that case, “the appropriate venue” for pressing the argument is before Congress, “not this court.”

The New York appeals court also refused to extend the protections in 2000, ruling against a postal worker, Dwayne Simonton who claimed co-workers harassed him for being gay.