What Is Zarda Vs. Altitude Express? The DOJ's Involvement In An LGBTQ Discrimination Case Is Troubling

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Title VII of the Civil Rights Act of 1964 served as the foundation for a landmark federal case that ruled being gay was not, in fact, a fireable offense. It may surprise some readers to learn that the groundbreaking decision in Hively v. Ivy Tech Community College was issued in April 2017, when the full 11-judge panel of the 7th Circuit Court of Appeals became the highest federal court to make firing an employee on the basis of their sexual orientation illegal. But the Department of Justice has just argued that LGBT discrimination should be preserved, filing its brief in a case that looks headed to the Supreme Court.

The new case in question is Zarda v. Altitude Express. In 2010, Donald Zarda, a skydiving instructor, sued his previous employer Altitude Express, claiming he had been fired for being gay. Zarda's case is now before the 2nd Circuit Court of Appeals, where all 13 judges heard oral arguments on Sept. 26. Hashim Mooppan, the DOJ's attorney, argued:

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.

The mere presence of the DOJ in this case is unexpected and largely unwelcome. A separate federal agency — the Equal Employment Opportunity Commission — appeared on Tuesday to argue against LGBT discrimination in the workplace.

It's rare to have federal agencies arguing on separate sides of a major legal case. Adding to the awkwardness in court was the fact that no one had requested DOJ input on this case — rather, the department filed an unbidden amicus brief back in July. As Mark Joseph Stern then observed at Slate, "[i]n an unusual move, the Trump administration elected to weigh in with an aggressively anti-gay stance."

Stern goes on to point out that the 2nd Circuit Court of Appeals leans left, and is "almost certain" to side with Zarda. That seems even more likely, given the judges' reaction to the DOJ's insertion of itself into the proceedings. Responding to EEOC attorney Jeremy D. Horowitz, Judge Rosemary Pooler observed:

We love to hear from the federal government, but it's a bit awkward to hear from them on both sides.

Later, Chief Judge Katzmann asked Mooppan to explain the process at the DOJ for filing briefs alongside the EEOC. When Moopan defered by claiming the question was "complicated," Katmann didn't let him off so easy.

"Try to help us," Katzmann replied.

But where help seemed most needed was in deciphering the DOJ's argument against Title VII protection for LGBT employees.

The details of this argument go long on the legalese. Mark Joseph Stern again does a phenomenal job laying out the specifics on Slate. The case hinges on three theories of sexual discrimination: 1) the "but-for" theory; 2) sex stereotyping; and 3) associational sex discrimination. In the first, the idea is that "but for" the employee's sex, they would not have been fired. In the second, an employee is discriminated against for failing to conform to gender norms. And finally, in the case of associational sex discrimination, the employee experiences discrimination for "associating" with someone the employer deems unfit. The corellary case Stern cites is the illegality of laws barring interracial marriage.

Essentially, the DOJ is attempting to prove that discriminating against an employee based on their sexual orientation does not constitute "sex discrimination" because said discrimination does not necessarily require a belief that one sex is superior to the other. The DOJ is arguing that none of the above theories apply to or fully encompass an employee being fired for their sexual orientation.

It's difficult logic to follow, to say the least. But the DOJ's side will probably get another chance to explain itself, given most analysts predict this case is heading for the Supreme Court.

More to come...