President Barack Obama during his tenure had enacted protections by law to find that“sexual orientation is inherently a ‘sex-based consideration.’” The current President Trump was determined to change that and the issue was brought up before the courts in a landmark civil rights case which bars employers from discriminating against their workers based on sexual orientation.
President Trump had intervened in a discrimination lawsuit filed by a sky-diving instructor and argued that Title VII of the 1964 Civil Rights Act did not explicitly cover sexual-orientation discrimination in the workplace. This is despite the separation of powers doctrine that is in place and was, therefore, a stance that put it at odds with the Equal Employment Opportunity Commission.
The United States Court of Appeals for the Second Circuit rejected the notion that sexual-orientation discrimination was not covered in the Civil Rights Act. It was determined that “race, color, religion, sex or national origin,” should also be extended to include sexual orientation. An appellate court in Atlanta has ruled the opposite.
The issue is still largely a political one as the ruling could create a scenario in which the issue of gay rights at work will be decided by a Supreme Court. The Supreme Court nomination choice of Justice is Neil M. Gorsuch and so has the weight and bearing of Trump attached.
For now, the private party that lost the case has not decided whether the Supreme Court will decide the case or not, in a review of the decision.
Circumstances surrounding the case were such that there was a dismissal of a sky-dive instructor who told a student he was “100 percent gay.” The girls’ boyfriend complained to the employer. Mr. Zarda said he had made the comment in response to her being uncomfortable with him so tightly strapped to him during the dive. Zarda eventually filed a lawsuit, claiming that his firing violated Title VII. Two courts in New York initially ruled against him and he subsequently died in a sky-diving accident in 2014. His appeal, however, continued.
Not long after, the Trump administration decided to weigh in on the Zarda case via his Twitter account in a roundabout way. It was tweeted that transgender people would be barred from military service. The Justice Department further pursued the issue when their lawyers filed a brief arguing that Title VII protections did not extend to sexual orientation and did not speak for the United States at large. This drew criticism from civil liberties groups such as the ACLU.
“Sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted,” Judge Katzmann wrote, “making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.”
Justice Department officials have previously said that Congress, and not the courts, should decide who is protected under the law. Others feel that laws can only be made within the scope of what Congress specifically enacted. This is why the issue will still remain largely divided.
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