by Lola Fadulu
Originally published: August 9, 2017
Most countries that have enabled same-sex marriage had a ban on workplace discrimination against gay people first. Yet in the US, even though the US Supreme Court ruled in 2015 that gay people can get married, it has yet to rule that they cannot be fired for their sexual orientation.
In the last couple of years, federal courts have begun seriously debating whether Title VII of the 1964 Civil Rights Act, which bars discrimination in the workplace based on “race, color, religion, sex or national origin,” can be read as also including sexual orientation. Although most courts have until recently said it doesn’t, during the Obama administration the Equal Employment Opportunity Commission (EEOC), a federal agency, began treating cases of discrimination based on sexual orientation as a Title VII violation.
But under president Donald Trump the government’s position has changed—or rather, it has split. In a case now pending appeal in the 2nd Circuit, Zarda v Altitude Express, a sky-diving instructor (or rather his estate, since he later died in an accident) is suing his employer, which allegedly fired him for being gay. The EEOC is supporting his case (pdf), but the Department of Justice on July 26th filed an amicus brief (pdf) opposing it. “The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination,” says the DOJ’s brief. “It does not, as has been settled for decades.”