The Department of Justice has been busy. Last week alone, it filed suit against a company for not hiring enough Americans; obtained search warrants for the personal information of anti-Trump protesters; and announced it will intervene in a campus free speech case. It also weighed in on a case involving LGBTQ rights.
Last Tuesday, the full U.S. Court of Appeals for the Second Circuit heard oral arguments in a major employment-rights case: Zarda v. Altitude Express. The case concerns Donald Zarda, a skydiving instructor who alleged he was unlawfully fired for being gay. The plaintiff, who has since died, brought the discrimination claim under Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination on the basis of race, color, religion, national origin and sex.
The legal dispute is over whether Title VII's protection against sex discrimination should be read to encompass discrimination on the basis of sexual orientation. According to the U.S. Department of Justice (DOJ), it should not.
The Second Circuit invited the submission of amicus briefs in the case. LGBTQ advocacy groups such as Lambda Legal and GLAD submitted briefs in support of Zarda's estate, as did the Equal Employment Opportunity Commission (EEOC), an independent federal agency tasked with enforcing federal anti-discrimination law. The DOJ also submitted a brief, but it sided instead with the employer, arguing lesbian, gay and bisexual employees are not entitled to protection under Title VII.
"The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination. It does not, as has been settled for decades. Any efforts to amend Title VII's scope should be directed to Congress rather than the courts," DOJ attorney Hashim Mooppan stated in the brief.
While it is unusual for all 11 judges of the Second Circuit to hear a case together, what is even more unusual is for the U.S. government to argue both sides of an issue — as it is doing in the Zarda case.
Greg Nevins, director of the Employment Fairness Project at Lambda Legal, was one of the attorneys to address the court. He was critical of the DOJ's position on the case and said its arguments reflect a "misunderstanding of what Title VII is all about." Nevins and Lambda Legal maintain Title VII ensures "employers cannot discriminate against employees based on gender stereotypes about who men and women should be attracted to, date, or marry."
Nevins also said the Second Circuit judges posed a flurry of questions to Mooppan regarding why the department had decided to weigh in on the Zarda case but not a very similar case that appeared earlier this year before the U.S. Court of Appeals for the Seventh Circuit: Kimberly Hively v. Ivy Tech Community College.
"They really wanted to know how the DOJ had stood on the sidelines for so long," Nevins said, "but once the new administration came in, they had to weigh in with their own contrary thoughts."
In July of 2015, the EEOC determined that Title VII did protect lesbian, gay and bisexual employees. Under the Obama administration, the DOJ did not weigh in on the issue, as the EEOC is considered the authority on Title VII within the federal government.
Far from clarifying the legal stakes of the case, what the DOJ did with its arguments in court, according to Nevins, only "added to the legal quagmire and legal confusion."
The DOJ further muddled the issue with consistent reference to bathrooms, Nevins added.
"The DOJ wanted to make this case about bathrooms," he explained. "That is not at all an issue in this case. They were trying to come up with some example about when differential treatment between men and women has been allowed."
When asked if Nevins believed that this argument was more political than substantive, he replied unequivocally "yes."
Referring to the weakness of their arguments Nevins said, "If you don't have anything else to argue, you try to conjure something up."
Anthony Kreis, a professor at Chicago-Kent College of Law, said he does not believe the Second Circuit judges were swayed by the DOJ's bathroom argument, which he called a "distraction." Rather, Kreis said the judges seemed "skeptical of the DOJ's motivations for becoming involved" in the case. Kreis said he believes the judges "got to the heart of the matter," which was that the Justice Department had taken a "politically motivated position."
Kreis said the DOJ failed to raise any arguments against an expansive understanding of sex discrimination that had not been already addressed in the Hively decision.
Despite the DOJ's intervention in the case, both Nevins and Kreis are optimistic the court will side with Zarda's estate.
The last time the Second Circuit considered this issue was in 2000 in Simonton v. Runyon, where the court found that Title VII did not include sexual orientation. However, Robert Katzmann, the current chief judge, has since indicated a willingness to reconsider the precedent set in that case.
Because all 11 judges on the Second Circuit heard the case last week, instead of the usual three, the court can overturn an existing ruling. Given the time and resources it takes to hear a case en banc (before all the judges), Kreis said that is was unlikely the court would agree to do it "unless there was an appetite to actually overturn a decision."
"It means the court is up to something significant," he added.
Under the administration of President Donald Trump, the DOJ has found itself at odds with LGBTQ-rights advocates on several issues.
Last month, for example, the DOJ submitted an amicus brief to the U.S. Supreme Court backing a Christian baker in Colorado who refused to make a wedding came for a same-sex couple. The case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, will be heard by the high court in its upcoming term, which just started this week.
In July, U.S. Attorney General Jeff Sessions told a conservative Christian law firm with a long history of fighting against LGBTQ rights that new federal guidance is on the way regarding "how to apply federal religious liberty protections." And in February, the DOJ, along with the U.S. Department of Education, reversed Obama-era guidance on transgender bathroom protections in public schools.