Federal Agencies Battle Each Other In Appeals Court Over Whether It’s Legal To Fire Someone For Being Gay

Vice News reports:

Trump’s Justice Department appeared in federal court Tuesday to argue that employers should be able to fire people because they are gay. In a rare occasion, all 13 judges of the 2nd Circuit Court of Appeals heard oral arguments in Zarda v. Altitude Express Tuesday.

The case originated in 2010 when skydiving instructor Donald Zarda sued his former employer, Altitude Express, alleging he had been fired because of his sexual orientation. The judges are expected to decide if the Title VII provision of the 1964 Civil Rights Act that protects against discrimination based on gender should also apply to discrimination based on sexual orientation.

“Employers under Title VII are permitted to consider employees’ out-of-work sexual conduct,” argued Hashim Mooppan, the Department of Justice attorney. “There is a common sense, intuitive difference between sex and sexual orientation.”

Tuesday’s oral arguments were an even rarer occasion because another government agency, the Equal Employment Opportunity Commission, was in court to argue against the DOJ, saying gay employees are protected by Title VII. The Justice Department inserted itself into the case in July by filing a brief supporting the employer.

More from Dominic Holden at Buzzfeed:

The discord — and the awkwardness on display — stems from the Trump administration taking a turn away from the Obama administration’s LGBT-friendly trajectory. That has put lawyers under US Attorney General Jeff Sessions at direct odds with more autonomous corners of the federal bureaucracy. The judges on Tuesday, in a hearing of the full 2nd Circuit, wanted to know if the two agencies had even consulted each other before filing opposing briefs.

“I don’t think it’s appropriate for me to speak to internal deliberations and processes,” Hashim Mooppan, a deputy assistant attorney general in the Justice Department’s Civil Division, told the judges. “The EEOC had the authority to file the brief they filed,” he continued. “And the DOJ has authority to file the brief it filed.”

Mooppan spoke on behalf of the United States government as a whole, arguing Title VII of the Civil Rights Act of 1964, which bans discrimination on the basis of sex, does not cover sexual orientation.

Slate has published a fascinating play-by-play of how things went down yesterday.

  • liondon#iamnotatraitor

    I say human…I say mongrel…let’s call the whole thing off.

  • JAKvirginia

    There’s a legal term called “just cause”. This is “just ‘cuz”.

  • Skokieguy [Larry]

    I really liked Slate’s article on this. And a quote from the trial:

    “We love to hear from the federal government,” she told Horowitz, “but it’s a bit awkward to hear from them on both sides.”

    http://www.slate.com/articles/news_and_politics/jurisprudence/2017/09/the_doj_s_new_anti_gay_legal_posture_just_got_shut_down_in_federal_court.html

    • JCF

      “Many sides, many sides…”: no wonder the Fed govt is confused: it comes from the top down!

  • Nate

    “There is a common sense, intuitive difference between sex and sexual orientation.”

    If you are going around work telling people about the sex you are having that goes under sexual harassment. What we are talking about is people just knowing you are attracted to the same sex and firing you. Huge difference.

    • Treant

      Yeah, but you have a brain. Republicans don’t.

      • fuow

        No, but they sure manage to vote.

        • Treant

          “People without brains do lots of things.” –The Scarecrow

          • Len Ricci

            It’s actually “Some people without brains do an awful lot of talking”

    • Todd20036

      People know I’m gay, but I don’t tell my boss who I fucked.

      • Dagoril

        Sure, you only tell all of us. Like a normal person!

      • Treant

        Unless you fuck your boss, in which case he probably knows.

        Probably.

        • Silver Badger

          I once had a boss who didn’t know how thoroughly he had been fucked until after I quit.

          • Treant

            Haven’t we all? One of mine drove me out because he wanted to hire his friend. His incompetent friend. I don’t take calls when I’ve been verbally (and physically) abused.

            The dipstick never changed any of the company registrations off my credit card, either. I ended up canceling the card and reporting him for fraud. It didn’t cost me a cent…

          • Galvestonian

            The hubby was fired from a caretaker job because he was gay. He was caretaker for a young girl who was handicapped and after firing my hubby she hired a straight guy who promptly raped the girl and got her pregnant. So sad.

          • Treant

            I can’t scream Schadenfreude because the girl probably had nothing to do with it. But I very much hope her parents suffered mightily as well.

        • Gerry Fisher

          Naw. He was blindfolded in the sling.

          • Treant

            That is frighteningly possible. My boss was a right-wing closet queen.

      • Gustav2

        All my coworkers knew who I fucked, I have lived with him since 1985…and was my beneficiary for all work related insurance, etc.

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      • Sporkfighter

        If you’re married, I expect he knows. If you bring your other to events like us straights are expected to do, he knows. Why he would care is beyond me.

    • John Ruff

      My coworkers will never have the privilege of knowing anything about me that happens outside of work.

      • Treant

        And then people call us stuck-up and stand-offish. It’s actually shown on my reviews, along with the fact that I didn’t friend my boss on Facebook. I didn’t have a Facebook account at the time, and still wouldn’t ever admit to using it. 🙂

        • Sporkfighter

          Never friend your boss. Your boss shouldn’t friend hr boss either. That’s a common-sense, common knowledge rule.

          • Treant

            You’d think, right? I don’t want to know and don’t care about what my boss does during the weekend.

            It’s none of his business what I do during the weekend, nor what my friends did.

          • Sporkfighter

            I’ve worked with people I would have socialized with as friends had they not been my boss. But there were my boss, and that changes things.

            (My daughter dated my bosses bosses son for a year and a half. That was awkward right up until she retired.)

          • Beagle

            Other way around here — a close friend became my boss, then my boss’ boss. Conversations are now rarely, if ever, social.

        • madknits

          My rule is that I don’t friend co-workers on Facbook.
          I’m pretty open at work (my boyfriend used to work in the same department), and everyone knows of my involvement in the Sisters of Perpetual Indulgence. But I won’t friend anyone from work on FB.

        • Duh-David

          “You cheated me out of your life, and then blamed me for not being there!”

          at 3:30:

          https://www.youtube.com/watch?v=nCAxExyC69A

      • Sporkfighter

        That’s tough to manage if you have a long career in the same place. There’s no way I could have kept my personal life absolutely private over 32+ years working in the same place with the same people in the same neighborhood. Hard to hide having kids in the same schools, spouses crossing paths, aging parents. We were twenty-somethings and are now fifty-somethings. We’ve grown up together. Fortunately, we’re in a generally people-centric liberal profession in a liberal state.

        You shouldn’t have to hide who you are. They should be comfortable with people different than themselves.

        • David Walker

          I loved my job at a radio station. It was in a gorgeous state that I got to travel around. Then my boss raped me. While I hated him, I managed to convince myself that I somehow caused it. I left. When I found that I really, truly, honestly felt that my new job was absolute perfection, I decided to tell my crew chief I was gay, so if the company had a problem with that, I could leave. After he finished laughing his huge, wonderful laugh, he told me he was gay, there were other gay men and women there, and as far as he knew the straight people had no problem with it. I stayed for 35 years.

          • Menergy

            wonderful!

          • zhera

            Oh, David. 🙁

            (((((((David)))))))

          • David Walker

            It’s OK, zhera. I think the situation helped sensitize me to rape victims and, later, how they can believe it’s their fault. I don’t hide it, as I don’t hide most of my other personal experiences, on the theory that I got through it, and my example may be what someone needs to find out how they can work through it, too. I like to think personal experience can be useful for others; I also think I probably use it too much and sound like some garrulous old fart.

          • zhera

            You’re absolutely right. Sexual abuse and assault must be talked to death instead of silenced to death. It’s the only way to overcome it, both on a personal level and as a society.

            I’m also not afraid to talk about my own experience with sexual assault. It wasn’t rape, but I was 10 and only luck stopped me from shoving it deep down and ‘forgetting’ it. Who knows what damage that could’ve done later.
            My biggest problem with it now is that the guy wasn’t caught for it, and that he most definitely kept on doing the same, or worse, to other young girls.

          • Sporkfighter

            Sorry you couldn’t skip the rape part. That part of your story sounds like many a rape victim’s self-imposed guilt.

        • John Ruff

          lucky you

          • Sporkfighter

            …and I know it. But it shouldn’t require luck to live a free and open life.

            Exercising your rights shouldn’t require that you be “lucky” enough to be born white, “lucky” enough to be born straight, “lucky” enough to be born male, and “lucky” enough to be born to Christian parents. There’s no end of “luck” people like Tony Perkins expect you to have if you want to participate fully in your own life.

          • John Ruff

            So, what’s your point?

          • Sporkfighter

            That it sucks to be black in American society and it shouldn’t?
            That it sucks to be female in American society and it shouldn’t?
            That it sucks to be gay in American society and it shouldn’t
            That bigotry forces people to live in ways they wouldn’t choose to live?
            That you deserve better?
            That we all deserve better?

            Take your choice.

          • John Ruff

            Well, I usually let them figure it out for themselves. I’m conventionally masculine and I love when they ask me about my wife. I tell them, “I’m married. But I don’t have a wife.”

      • BJORN RAGNVALDR

        I’ve often found (not as much today) when I tell someone the least important thing about me (situational) they find it to be the most important thing they know about me.

    • Gustav2

      This is a continuation of the religious thought of the ‘orientation’ is not a sin, but is the ‘activity’ is.

      Bless their hearts.

    • j.martindale

      Justice Kennedy wrote compellingly about how the understanding of what marriage “is” developed over time to include the right of prisoners, mixed race couples, and even same sex couple. If he is consistent, he will recognize that the concept of sexual equality has developed among modern man to include orientation as coming under the umbrella of what deserves to be protected by the law. I am cautiously hopeful that once again his recognition of the need to guard against homophobic discrimination will lead to a good decision in this case.

    • Bj Lincoln

      Everyone knows who I have sex with. I’m not shy about my gayness or the fact I have been with the same woman for 12 years. Anyone before her is no ones business.

    • Priya Lynn

      Plus, if they rule against gays, they’ll rule that people can be fired for being gay rather than people can only be fired if it can be proven they had same sex sex and cannot be fired merely for being same sex attracted – the whole “there’s a difference between sex and sexual orientation” won’t be reflected in the anti-gay decision.

  • Gustav2

    “Employers under Title VII are permitted to consider employees’ out-of-work sexual conduct,”

    Remember when a divorce stopped your advancement and possibly your employment? All you str8 folks who get divorced are next, the 1950’s are coming back,.

    • Gustav2

      deleted

    • Silver Badger

      The BIBLE says there is no divorce. THE BIBLE SAYS that adulterers be given the death penalty.

      Next up: The stoning of trump and his whore “wife”.

      • fuow

        Which wife?

  • Rex

    Stands to reason that someone could be fired for being heterosexual, if sexual orientation is not protected. Not that it would ever happen.

  • OdieDenCO

    2017 and we as a nation still can’t come to grips with the simple fact that All are created equal

  • netxtown

    looks like jiffy is doing his part to set up resurrect the political wedge element for 2018. Once again, we are the pawns in their game of mongering.

    it used to be that our form of govt was for, of, and by the people. but, since citizens united – it is for, of, and by business.

    • EdA

      In “fairness,” Jefferson Beauregard Sessions is perfectly capable of being a bigot without need for an EXTRA ulterior motive.

  • Leo

    OT. Debra regrets the appearance and was bothered by Megyn’s question to the fan. https://twitter.com/THR/status/912954493112913921

  • Michael

    The one goos thing about being gay is we are not black. Being black is by far an easier political wedge to use in America.

    • netxtown

      i understand your ‘point’…but there are black, white, jewish, female, hispanic, etc gay people. we cross all boundaries.

    • JAX

      Thanks.
      /s from a black, gay man.

  • worstcultever

    (just some TMI thoughts)

    I think sex is boring. After a lifetime of doing it every which way with both sexes but mostly women (and yes having all the requisite orgasmic fun – yawn) I’ve come to realize that for me it’s all a bunch of boring bullshit and I’m basically asexual. However I do like occasional cuddling and smooching, and prefer women for this, as well as for companionship.

    So anyway, since I’ve always basically identified as lesbian, does this get me fired or not? Is there a checkbox for this? “Basically lesbian but bored with all genital nonsense” – would that let me keep my job?

    • blackstar

      no toaster for you !

    • Sporkfighter

      Your employer shouldn’t have to be kept in ignorance; they can be disinterested. It’s just not their place to hold an opinion.

    • LSMC1987

      Only part time……..

    • jmax

      Asexual? That’s an abomination unto Gawd. Unemployment line and a seat in Hell for you. After all, my beliefs are more important than yours.

    • Priya Lynn

      According to the justice department “Employers under Title VII are permitted to consider employees’
      out-of-work sexual conduct, There is a common sense, intuitive difference between
      sex and sexual orientation.” so, if the ruling were consistent with what the Justice Department claims to be seeking then no, you should not be fired for being a lesbian because you are not engaging in gay “out-of-work sexual conduct”. Of course if the court rules you can be fired for being gay regardless of a lack of sex the Justice Department won’t be appealing that ruling.

  • GayOldLady
    • OdieDenCO

      I think, that particular elf klan wears white hoods.

    • BJORN RAGNVALDR
      • GayOldLady

        If there is any Justice, maybe, in the end, he’ll go to prison too!

        • bzrd

          he lied about meeting with russkis

    • Girlgoon

      I don’t think the elves are in this country legally. They are migrant slave workers forced to make cookies all day in a hallowed out tree.

      • GayOldLady

        I’m all for letting them all stay, except Sessions.

  • LSMC1987

    I find this odd that DOJ says you can get married but fired for it. You can be gay, get fired, get married but discriminated against in seeking marriage services…. This is inconsistent. If SCOTUS says yes you can, then Civil Right Act is dead. All of it. Under the guise of religion, all forms of hate will be allowed again. This does not just apply to gays, but mixed marriages, “colored”, ethnic minorities, religious minorities, etc… A free for all.

    • Tawreos

      A.K.A. Part of the GOP agenda

    • fuow

      No, this will be a special law. It will be written this way: In all conflicts between conservative Christians (the only true kind) and gays, a coin shall be flipped to decide the outcome.
      Head: Conservative Christians win.
      Tails: Gays lose.
      No other groups are to be affected by this law.

      That’s how it will play out, thanks to the Quislings amongst us gay men who voted Green or stayed home to protest the god for not being perfect.

      • rextrek1

        or believe it or not – on Twitter there is a page “GAYS FOR TRUMP”…..????

        • fuow

          Yeah, there were also Jews for Hitler. At least, for a short while…..

  • Folks are talking about gender when this seems like more of a religious issue. No one would ever be allowed to say, “I follow kosher dietary restrictions… because you refuse to, you’re fired.” Not convinced treating “gay” as a gender is a winning argument.

    • -M-

      The arguments overlap.
      Obviously it is religious discrimination as you point out. Gender discrimination is usually about enforcing gender norms about how people ‘should’ look and act, which is again obviously a religious bias and logically includes telling them who someone of their gender is allowed to date.

    • Priya Lynn

      “Not convinced treating “gay” as a gender is a winning argument.”.

      I don’t see how it can be anything but a winning argument to a rational person. If its okay for John to have a relationship with Susan then its okay for Alice to have a relationship with Susan – anything else is discrimination on the basis of sex, it is the gender alone of the partners that decides whether or not they are discriminated against.

  • fuow

    I recollect several gay men here arguing against advocating for my marriage rights a while back – it was far more important to secure employment/housing/services security.
    We all knew at the time that their real argument was based on the terror of having, themselves, to decide whether to commit to one person or not.
    This case has been working its way through the courts for seven years now. The Colorado cakes’ case is being heard this fall by the Supremes.

    So – here we are, a hostile government thanks to non-voting liberals who have made the perfect the enemy of the good. A Supreme Court which in the last similar case gave us Hobby Lobby. So, my dears, how’d that protest vote for the Greens work out for you? We all know how Judge Garland would have voted on both these matters (and, please, darlings, let’s not even pretend this won’t end up before the Supremes, regardless of how the 2 Circuit decides.

    Where the fucking hell do you idiots think lower court judges come from? Under the cabbage patch?

    • Ninja0980

      As a whole, our base doesn’t care about the courts, SCOTUS or otherwise.
      Republicans do and thus they turn out to vote while many in our base can’t be bothered unless it’s someone who meets their purity test 100%.
      End result,we get crap like this.

      • fuow

        You put it perfectly. Sigh.

        • Ninja0980

          The fact there are still Circuit court judges from the St. Ronnie era on several of the Circuits shows how smart Republicans were in making sure courts would move to the right.
          Pity Democrats didn’t learn the same.

  • LovesIrony

    If you don’t fire a woman for sucking dick, why is it okay to fire a man for sucking dick?

    • JAKvirginia

      Yeah. Just like in the military. Remember? I could never understand how an organization that thrived on ass-kissing would have a problem with dick-sucking.

  • Gene Perry

    How is this even in court? Hasn’t this been settled ages ago?

  • JWC

    Jeffrey you little shit (who probably played with dolls as a kid) you are evil. What would you think if the world suddenly turned on old white men.That’s why I have changed your name from Beauregard to Noregaurd you have no regard for anyone else’s ideas

    • David Walker

      He played with dolls, but they were dressed in plantation days gowns. He kept his Ken doll, which he modified to look like Rhett, under his bed.

      • JWC

        and a few black dolls for whatever suited his needs

  • Bluto

    Evil fucking elf, burn in hell.

  • Bj Lincoln

    It is one more step in erasing us and our civil rights from government and law. Sessions is a hateful little shit. I wish we could find something in his past that would make him crawl away from service. Can’t some hacker plant a folder of child porn or something?

  • Tom G

    Am I to understand that the company is not denying that they fired him because he was gay, but that they had a right to do so?

  • RealityBass

    Miss Sessions is forgetting where she came from.

  • Gregory Peterson

    “common sense,: as used by “conservatives” anyway, is usually common misconceptions and common bigotries.

  • customartist

    Title VII is not necessary in order to determine that discrimination based on Sexual Orientation is illegal, specifically under the Constitution, because Equal Protection applies. The Constitution is THE Highest law. Subsequent laws are legally unnecessary.

    SCOTUS has already opined that Gays and Lesbians are a “class” of people who have been subjected to “pure animus”.

  • JAKvirginia

    This shit happens because conservatives believe gay is something that you do, not something that you are. Sigh….

  • pete

    hey, there’s gonna be conflicts when a racist tries to overcome 70 years of hard-won progress.