Can employees be fired for being gay?

Gay Americans have been encouraged in recent years to think that job discrimination against them was due to be outlawed. But the Trump Administration gave notice this past week that it believes discrimination against LGBT employees is legal.

The position of the Justice Department is that laws protecting workers from gender and racial bias should not be applied to gay and lesbian workers – that they can be fired just for being gay.

A word about originalism

The claim derives from the Supreme Court concept of originalism, which is that a law must be interpreted according to what the framers of the law intended. Since Title VII of the Civil Rights Act of 1964 did not include being gay among the groups protected under the law, the law does not protect them.

The case in question is being tried in Manhattan court. Donald Zarda, a skydiving instructor, claims that his employer, Altitude Express Inc, fired him because he told a female skydiving customer not to worry about being close to him during the fall because he was gay.

In its surprise intervention, federal government officials sided with the employer – arguing that it is entirely legal to discriminate against gay employees on a federal level.

The Justice Department official making this case likened firing gay persons to firing straight employees for sexual improprieties. Courts have ruled consistently that employers can fire such persons. Therefore, employers can fire gay people, too.

To the Supreme Court?

The argument was presented to U.S. Court of Appeals for the Second Circuit, as one of several employment-discrimination cases that are expected to end up before the Supreme Court.

At present, twenty states protect LGBT employees from this kind of discrimination. If the Supreme Court does not agree with the Justice Department’s point of view, protection against bias may be extended to the entire nation.

West Virginia law provides no statewide protections for sexual orientation or gender identity. The state would, therefore, be included in such a ruling.

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