When it’s not too busy subpoenaing their Facebook posts to harass American citizens critical of Donald Trump, the so-called “Justice Department” under the auspices of Jeff Sessions is now arguing for the right of employers to fire Americans because of their sexual orientation:
The question came up this week, when a lawyer for Trump’s Department of Justice argued that the Civil Rights Act of 1964 does not protect LGBTQ Americans from being fired because of their sexual orientation—a complete reversal of the government’s position on such matters under previous presidents.
The Trump-infested DOJ has now placed itself firmly in the camp of employers who want to discriminate on the grounds of sexual orientation, in its interpretation of Title VII of the Civil Rights Act:
The Justice Department argument Tuesday, before the Second Circuit Court of Appeals, came in the case of Donald Zarda who claims he was fired by his company, Altitude Express, for being gay.=
The Trump DOJ and its lawyer, Hashim Mooppan, felt compelled to interject themselves into this dispute, even though another Federal agency, the Equal Employment Opportunity Commission had already weighed in and argued on Mr. Zarda’s behalf in the case. Taking the exact opposite position, Mr. Mooppan argued that “out of workplace sexual conduct” was fair game for employers under the Civil Rights statute, because “sex” as defined under the statute was distinguishable from “sexual orientation:”
Mooppan, explained that, under federal law, employers were absolutely free “to regulate employees’ off-the-job sexual behavior,” meaning they could discriminate against employees for adultery, promiscuity or sexual orientation.
Think about that for a minute. A lawyer for our Justice Department is saying that employers have the right to “regulate the sexual behavior” of their employees. In Mr. Zarda’s case, there was no “out of work” behavior at issue—he worked in a skydiving company and simply advised a female customer concerned about the close physical contact necessary to participate in that sport that he was “100 percent gay,” and that she had nothing to worry about. Her insecure boyfriend then apparently reported that to Zarda’s employer, who promptly fired him.
[T]he law has been interpreted to include protections for sexual orientation for decades, after multiple lower level district courts concluded beginning in 2002 that employees could not be fired simply for being gay. The Seventh Circuit Court of Appeals affirmed in April that Title VII does in fact cover sexual orientation, noting that any other interpretation of the law would be “confusing and contradictory.”
Other federal circuit courts, however, disagree with the Seventh Circuit’s opinion in the Hively case, setting up a split between the circuits that points the way for the issue to be decided by the Supreme Court. This is clearly the Trump DOJ’s intent, with the ultimate goal of fostering widespread discrimination against LGBT Americans. While several states outlaw such discrimination, other states’ protections are more limited and 16 states offer no protection from such discrimination whatsoever.
One can argue about the interpretation of the “wording” of Title VII, but what was most troubling about the DOJ involvement in the case is that it was wholly unasked for by anyone—including the parties to the suit. The Trump DOJ filed an unbidden amicus brief. In other words, they deliberately inserted themselves into this matter for the sole purpose of getting this issue before the Supreme Court, and turning back the clock on the rights of gay, lesbian and transgender people to live their lives without the fear of losing their jobs because of who they are.
That is the Trump agenda.