September 27, 2017 at 7:40 am EDT | by Chris Johnson
Two U.S. agencies at odds over protecting gays under Title VII

Thurgood Marshall U.S. Courthouse: home of the U.S. Court of Appeals for the Second Circuit. (Photo by Ken Lund; courtesy Flickr)

NEW YORK — Two U.S. agencies — the Justice Department and the Equal Employment Opportunity Commission — were at odds Tuesday in arguments before a federal appeals court over whether existing civil rights law bars anti-gay employment discrimination.

Meanwhile, judges on the U.S. Second Circuit Court of Appeals gave conflicting signals on whether Title VII of the Civil Rights Act of 1964 prohibits discrimination against lesbian, gay and bisexual workers, making a ruling in favor of gay rights anything but assured.

Arguing the Trump administration’s position that lesbian, gay and bisexual people have no protections under Title VII was Deputy Assistant Attorney General Hashim Mooppan. That position is new for the Justice Department and came about after the confirmation of U.S. Attorney General Jeff Sessions.

Chief among Mooppan’s arguments was that Congress didn’t intend the prohibition on sex discrimination to apply to lesbian, gay and bisexual people because lawmakers have resisted spelling out sexual orientation discrimination is illegal.

“Think about what would happen today if Congress were to pass a statute that said no sex discrimination,” Mooppan said. “If it just said sex discrimination, I think it would be indisputable that that did not cover also sexual orientation discrimination. The reason being, you would have both a — until this year — unbroken set of case law saying the two were distinct and you had have several prior acts of Congress that treated them as distinct. So, if that’s the case today, then surely…in 1964 when Congress passed the same, exact word didn’t have some broader notion of sex discrimination compared to what we have today. It just makes no sense.”

As evidence Congress didn’t intend the prohibition on sex discrimination to include sexual orientation discrimination, Mooppan cited efforts in 1991 to amend the Civil Rights Act that didn’t include explicit protections for anti-gay discrimination even though legislation was introduced to spell that out.

Jeremy Horowitz, assistant general counsel for the EEOC, in contrast argued the prohibition on sex discrimination should be construed broadly and applied to anti-gay discrimination based on Supreme Court rulings in such cases as the 1989 Price Waterhouse decision and the 1998 Oncale decision.

“The sex stereotyping that says that if you are a man attracted to men, or a woman attracted women, either way, you don’t meet the stereotype that the employer has for how your gender should behave,” Horowitz said “And so in the case you’re being put to a question: Do I keep my job, or do I keep my choice of partner?”

The EEOC adopted the position Horowitz presented to the court during the Obama administration when the agency found in the 2015 case of Baldwin v. Foxx that anti-gay discrimination is a form of sex discrimination.

Asked whether he thinks congressional intent in 1964 is relevant to Title VII, Horowitz replied, “No, your honor, I don’t. In the Oncale decision, Justice Scalia said it’s the words of the statute rather than the concerns of the legislators that drives the interpretation of the statute.”

Predicting Mooppan’s arguments that congressional failure to enact pro-gay laws demonstrates it doesn’t consider anti-gay discrimination a form of sex discrimination, Horowitz said “legislative inaction is a very poor means of determining congressional intent.”

In one exchange highlighting the unusual nature of two arms of the U.S. government making conflicting arguments in court, Mooppan flat-out refused to comment in response to multiple inquiries from judges on whether the Justice Department signed off on briefs from EEOC — either in this case or more generally — saying he doesn’t “think it’s appropriate” for him to speak to internal deliberations.

“What I’ll say is this: the EEOC had the authority to file the brief they had filed in this case and the Department of Justice, of course, has the authority to file the brief it has filed in this case on behalf of the United States,” Mooppan said.

The case, Zarda v. Altitude Express, was filed by a gay skydiver who asserted he was fired from him his job as a result of his sexual orientation after he disclosed he was gay in mid-air to a female client. After Zarda’s death during a subsequent skydiving accident in 2014, his estate continued his case in his name.

Greg Antollino, a New York-based civil rights attorney, represents the Zarda estate and urged the court to find gay protections under Title VII based on the plain language of the statute, associational discrimination and sex stereotyping.

“In our belief, the discrimination is against Don Zarda because he was a male, because it was a motivating factor in his termination,” Antollino said. “Had he been a woman, this wouldn’t have happened.”

Greg Nevins, workplace fairness program strategist for Lambda Legal, also took part in oral arguments before the court and asserted Title VII prohibits discrimination on the basis of sexual orientation.

“Discrimination against someone in a same-sex relationship is the same as discrimination against someone in an interfaith relationship is the same as discrimination against someone in an interracial relationship — and they all are equal,” Nevins said.

Saul Zabell, the lawyer for Altitude Express Inc., on the other hand pointed to a state court decision finding insufficient evidence for sexual orientation discrimination in Zarda’s case (New York state court has a higher threshold for making such claims), which he said the plaintiff didn’t initially make upon filing a complaint before EEOC.

“If he does not raise the issue of being discriminated against because of his sexual orientation in his EEOC charge, then he doesn’t get the opportunity now seven years after filing the EEOC charge after all the facts are out in this case to now somehow amend his pleadings and amend his EEOC charge to say, ‘No, no, no. Because the court might be willing to change its interpretation of the application of Title VII to sexual orientation, I want to change my EEOC charge to make it fit with what the court might consider,” Zabell said.

Zabell’s arguments were undercut when a judge read aloud Zarda’s initial charge, which said although he’s not filing a complaint based on his sexual orientation, he’s making it because “in addition to being discriminated against because of my sexual orientation, I was also discriminated against because of my gender.”

Addressing the court as an expert was Adam Mortara, a Chicago-based attorney who struck a different chord than other attorneys, but nonetheless undercut the idea of gay protections under the Title VII by arguing for limited interpretation of the law.

“It is not true that merely being non-conforming to gender by itself gives you a sex discrimination claim,” Mortara said. “It has to also be true that there’s something additional: Evidence of misogyny, evidence of highly traditional sexist views about women and children. That’s kind of the back case for the court. There has to be something more.”

Although a three-judge panel on the Second Circuit ruled in April against the idea sexual orientation bias is sex discrimination based on precedent in the jurisdiction, the full court agreed to rehear the case as part of “en banc” review of the litigation.

With the issue before the 11 judges instead of just three, some expressed skepticism over gay protections under Title VII, with some conveying support for the idea and many holding their cards close to the vest.

U.S. Circuit Judge Reena Raggi, an appointee of George W. Bush, repeatedly challenged the notion anti-gay discrimination is a form of sex discrimination, saying the intent of Title VII is to ensure neither men nor women are economically advantaged over the other.

“There is a presumption, a stereotype, a bias, whatever we want to call it that people should be attracted to people of their same sex, and it’s applied both to men and women, and I’m having trouble understanding how that’s discrimination that differentiates between men and women as opposed to a different kind of discrimination that we might well wish to prohibit, but that’s not sex discrimination,” Raggi said.

Raggi said language in the 1989 Price Waterhouse decision indicating not all incidents of sex stereotyping are sufficient for claims under Title VII demonstrates anti-gay discrimination may not be a violation to sue under the law.

“Is it putting a disadvantage on one sex — either men or women — or is it putting a disadvantage on homosexuals and that that’s now the distinction, it’s not men and women, it’s homosexuals versus heterosexuals?” Raggi asked at one point.

During Nevins’ time before the bench, U.S. Circuit Judge Dennis Jacobs, a George H.W. Bush appointee, raised the question about whether the ruling from the bench would also impact religious freedom — an issue Nevins evaded by responding: “I feel confident there will be another day in which this court will be called upon to address that question, but that day is not before the court today.”

It could be months before the Second Circuit renders a decision. One circuit court, the U.S. Seventh Circuit Court of Appeals, found gay protections under Title VII this year, but the U.S. Eleventh Circuit Court of Appeals reached the opposite conclusion.

In the meantime, the U.S. Supreme Court may take up the issue of lesbian, gay and bisexual protections under Title VII as a result of a petition filed by Lambda Legal in a separate case on behalf of Jameka Evans, a security guard who claims she was effectively terminated from her job at Georgia Regional Hospital for being a lesbian.

Rachel Tiven, executive director of Lambda Legal, told reporters on the steps of the courthouse the arguments were “a dress rehearsal” for a resolution from the Supreme Court on the issue.

“This is third time in one year that Lamdba Legal has stood in front of a circuit court of appeals in the United States to say that sexual orientation discrimination is a form of sex discrimination, and the Supreme Court has to address the split in the circuits,” Tiven said. “When you add to that the extremely unusual situation of the Justice Department seeking to intervene in a case to add its opinion to say that they don’t agree with the Equal Employment Opportunity Commission — and we saw that the court was quite interested in how that came to be, and how unusual that is — it really just cries out for resolution by the Supreme Court.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

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