The Trump administration filed an amicus brief in an employment nondiscrimination case that says sexual orientation is not covered by Title VII that bars discrimination based on sex.
The case in the 2nd Circuit of the U.S. Court of Appeals in New York involves a man who was fired because he is gay. The plaintiff claims he should be covered by the Civil Rights Act Title VII which covered discrimination based on sex. The Obama administration’s position was that sexual orientation is included in that category.
The Trump administration is arguing since Congress hasn’t specifically included sexual orientation into the law, the courts can’t do that on their own.
The law was enacted because woman are often treated differently than men in employment. Prior to this law, classified ads routinely listed jobs under headings of jobs for men and jobs for women.
Those arguing that sexual orientation should be included in sex discrimination say that gay men are treated differently than straight men and lesbians differently than straight women.
In the case Zarda v. Altitude Express, Donald Zarda, a skydiving instructor, was fired when the new owners of Altitude Express learned he was gay. Zarda later died in an unrelated skydiving accident but his executors pursued the case.
The U.S. district judge said Zarda could file a complaint under state law, which prohibits employment discrimination based on sexual orientation in New York. The appeals court agreed. Zarda’s estate appealed and the 2nd Circuit is hearing the case en banc. If the estate loses this appeal, they can appeal to the U.S. Supreme Court to decide whether sexual orientation is covered by Title VII.