Re­ject gay-bias suit in work­place claim, court urged by U.S.

Northwest Arkansas Democrat-Gazette - - BUSINESS & FARM - ERIK LARSON

The U.S. Jus­tice Depart­ment on Wed­nes­day urged the fed­eral ap­peals court in Man­hat­tan to re­ject a law­suit by a for­mer sky-div­ing in­struc­tor who claims he was fired for be­ing gay.

The stance of Pres­i­dent Don­ald Trump’s ad­min­is­tra­tion puts it at odds with some of the coun­try’s most valu­able com­pa­nies.

Civil-rights groups work­ing to ban work­place dis­crim­i­na­tion against ho­mo­sex­u­als na­tion­wide 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 les­bian, gay, bi­sex­ual and trans­gen­der 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 Jus­tice Depart­ment ar­gu­ment 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 Wed­nes­day to ban trans­gen­der peo­ple from serv­ing in the mil­i­tary, lead­ing to protests in cities in­clud­ing New York and Wash­ing­ton.

“On the day that will go down in his­tory as An­tiLGBT 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 sky-div­ing 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 Jus­tice Depart­ment’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.

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 sched­uled to hear ar­gu­ments in Septem­ber. The ques­tion has al­ready di­vided other courts and could reach the U.S. Supreme Court.

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 Demo­crat­i­cled 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.

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