In an unsolicited move that seems to have taken many people by surprise, the Trump administration’s Justice Department has weighed in on a private employment federal case involving the alleged discrimination and firing of a gay employee based on his sexual orientation. This somewhat unusual involvement came on the same day that President Trump announced his intention to ban transgender individuals from serving in the military via a series of three tweets on Twitter.
This combination of LGBT rights-related interjections are essentially a reversal of the former Obama administration’s interpretation of Title VII, which was clarified in a 2014 memo issued by former Attorney General Eric Holder. This memo stated that it was the position of the Justice Department under the Obama administration to extend the protections afforded by Title VII to include the gender identity of a person, including those of transgender status. This position was backed up by a 2015 ruling of the Equal Employment Opportunity Commission (EEOC), which voted that discrimination which was based on sexual orientation was illegal. The ruling, while not federally binding, does, however, have influence over the courts, which often defer to the interpretation of laws that have been determined by federal agencies.
How the reversal happened
The reversal of this inclusive interpretation of Title VII came from the Trump administration in the form of an amicus brief filed by the Justice Department under current Attorney General Jeff Sessions, which urged a ruling of the federal appeals court to find that the civil rights law does not specifically ban workplace discrimination that was based on sexual orientation. The brief goes on to say that because Title VII neither defines the term “sex” in a way that includes sexual orientation or mentions sexual orientation specifically that it only protects people who have been discriminated against due to their gender and not due to their sexual orientation. Further argument claims that Congress has had ample time to add language that would directly extend protection to cover sexual orientation based discrimination, but has failed to do so.
The case at the center of this story, Zarda v. Altitude Express, involves the 2010 firing of Donald Zarda, a skydiving instructor who claims he was fired by his employers at Altitude Express following a complaint lodged against him by the boyfriend of a client who had received instruction from and participated in a tandem skydive with Zarda. Tandem skydives involve the client having their instructor strapped tightly to their back in order to deploy the parachute at the proper time during the dive and are not uncommon. Zarda had informed his client that he was gay, something he often did with female clients to alleviate the potential awkwardness of having to be closely attached to them during the dive, but when the client’s boyfriend later filed a complaint with Altitude Express, he was fired for failing to provide an enjoyable experience for the customer. Zarda claimed that he was fired for his sexual orientation. At present, the case is in the 2nd U.S. Circuit Court of Appeals.
The state of California recognizes and prohibits the discrimination of employees for their sexual orientation through the California Fair Employment and Housing Act. If you have faced discrimination as an LGBT individual in California, we encourage you to contact the dedicated workplace discrimination attorneys at Hennig Ruiz today for a free consultation.