The case was brought by Donald Zarda, a skydiving instructor who was fired for being gay in 2010 from a job on Long Island, New York. Zarda had to tie himself tightly to a female client before they jumped from a plane, and she was uncomfortable with the close contact. So he told that he was gay.
The school fired Zarda after the client’s boyfriend complained about what Zarda said.
“He was proud of being gay and in the male workplace of the skydiving community,” said Greg Antollino, an attorney for Zarda’s estate. Zarda himself died several years ago in a skydiving accident, and his partner Bill Moore is pursuing the case.
The case was heard this week by the 2nd U.S. Court of Appeals, with the government arguing on both sides. On Zarda’s side, the Equal Employment Opportunity Commission (EEOC) wrote a brief saying that he experienced sex discrimination that is not permitted under Title VII of the 1964 Civil Rights Act.
“If having sex with a man is okay for a woman, it has to be okay for a man as well,” Greg Nevins of Lambda Legal told Newsweek. “You cannot apply a different rule based on gender, according to the law.”
The EEOC, though, is headed by an Obama Administration holdover. The Department of Justice (DOJ), run by Attorney General Jeff Sessions, argued that it was perfectly fine for the school to fire Zarda for being gay because sex discrimination in Title VII only refers to discrimination based on sex assigned at birth.
“There is a common sense, intuitive difference between sex and sexual orientation,” Justice Department lawyer Hashim Mooppan argued in court.
He went on to say that it’s perfectly legal for employers to discriminate based on private, off-the-job “sexual behavior.”
“They’re allowed to say if you cheat on your spouse, you’re fired. They’re allowed to say if you’re promiscuous, you’re fired. None of that is covered by Title VII,” he said.
While the judges focused their questions on the legal matter before them, they did notice that the DOJ was arguing against the EEOC.
“You know we love to hear from the federal government, but it’s a little awkward for us to have the federal government on both sides of this case,” Circuit Judge Rosemary Pooler said.
Another judge asked Mooppan if the EEOC and the DOJ have to coordinate before filing briefs, but he responded that it was not “appropriate for me to comment.”
Earlier this year, an appeals court in Chicago ruled that Title VII prohibited discrimination against LGB people in a case that involved a lesbian teacher from Indiana. Several weeks before that, a panel of judges in Atlanta came to the opposite conclusion regarding Title VII.