Discrimination Based on Sex Is Debated in Case of Gay Skydiver

https://www.nytimes.com/2017/09/26/nyregion/discrimination-based-on-sex-sky-diver-donald-zarda.html

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About seven years ago, Donald Zarda, a Long Island sky-diving instructor, shared a bit of personal information with a female student as they prepared for a jump. He was, he told the woman, “100 percent gay.”

He made the disclosure, he later explained, because the woman had seemed uncomfortable with the close physical contact. Her boyfriend was watching and a friend had been teasing her about being strapped in so tightly to another man.

After the woman’s boyfriend called the skydiving school to complain about the encounter, Mr. Zarda was fired. He sued, setting in motion a legal case that has grown more consequential as it has worked its way through the courts over the past several years.

On Tuesday, Mr. Zarda’s firing was dissected before a panel of 13 federal appellate judges in Manhattan, who were wrestling with whether federal discrimination law provided protection for employees facing discrimination on the basis of their sexual orientation.

But the most curious division was not among the judges, but between lawyers for the federal government who, over two hours of arguments, staked out opposing positions on the reach of federal discrimination law.

A lawyer for the federal Equal Employment Opportunity Commission, Jeremy Horowitz, sided with the skydiver, arguing that federal law did prohibit employers from discriminating against employees because they are gay.

But a deputy assistant attorney general of the Justice Department, Hashim M. 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.

Even as the judges were struggling with the underlying legal question, they seemed unsure of what to make of the two government lawyers, each vigorously arguing opposite points.

The divide within the government emerged in July, when the Justice Department filed a brief in the case, breaking with the E.E.O.C. and telling the court that the commission was “not speaking for the United States.” Filed on the same day President Trump announced on Twitter that transgender people would be banned from serving in the military, the brief fueled concerns among civil rights activists that the Trump administration was trying to roll back lesbian, gay, bisexual and transgender rights secured under previous administrations.

“It’s a little awkward for us to have the federal government on both sides of a case,” one judge, Rosemary S. Pooler, noted, while other judges asked questions about how the rift had developed and whether the Justice Department had originally approved the E.E.O.C. brief. Mr. Mooppan refused to answer, saying, “I don’t believe it’s appropriate” to disclose.

Much of the debate on Tuesday afternoon, before the full United States Court of Appeals for the Second Circuit, revolved around a single word in Title VII of the 1964 Civil Rights Act, which generally prohibits employers from discriminating against employees on the basis of “race, color, religion, sex or national origin.” At issue was the word “sex,” which courts had long understood to mean it was illegal to discriminate against employees because they were male or female, or failed to conform to male or female stereotypes.

Most federal appeals courts in the country have long held that sex discrimination did not encompass discrimination based on sexual orientation. However, a single federal appeals court in Chicago ruled earlier this year that it did.

During the oral arguments on Tuesday, one judge, Reena Raggi, sounded skeptical of the more expansive reading of the law, wondering at one point what would have happened had Mr. Zarda been a lesbian rather than a gay man? If both scenarios would have resulted in a firing, “I’m having trouble understanding how that’s discrimination between men and women,” she said, as opposed to another type of discrimination that was not barred by Title VII protections.

A lawyer for Mr. Zarda, however, said that discrimination on the basis of sexual orientation inherently involved sex distinctions in a way that violated federal law.

“Sexual orientation cannot be extricated from sex, the two are one and the same,” said a lawyer for Mr. Zarda, Gregory Antollino. It was an argument that Mr. Horowitz, the E.E.O.C. lawyer developed further, explaining that “if you change the sex of the individual and the outcome would be different, that’s discrimination.” What he meant, he said, was that if Mr. Zarda had been a heterosexual female skydiving instructor and had disclosed her sexual orientation, would she have been fired? If the answer was no, then Mr. Zarda had been the victim of sex discrimination.

Mr. Horowitz also argued that gay employees were protected under Title VII because they were being discriminated against for transgressing gender stereotypes, namely that people of one sex should be attracted to members of the opposite sex.

Mr. Mooppan, the Justice Department lawyer, dismissed the notion that sexual orientation was included in the meaning of sex, asking judges to engage in an exercise in name-calling.

If someone opposed interracial marriages, that person would be termed a racist, Mr. Mooppan said. But what about someone opposed to same sex-relationships? “You might call them a lot of things, but you would not call them a sexist,” he said.

New York state law outlaws discrimination on the basis of sexual orientation.

Mr. Zarda died in 2014 on a wingsuit BASE jumping trip in Europe. The lawsuit is being pushed forward by his sister and Bill Moore, a close friend and former partner of Mr. Zarda’s.

In a brief interview before the court hearing on Tuesday, Mr. Moore said that Mr. Zarda had been devastated when Skydive Long Island had fired him and that it led him to lose hope that he would be hired as a commercial pilot, a goal he had long been working toward. “Don always said he felt he had no purpose in the world,” Mr. Moore said. “He now has a major purpose.”