Civil Rights Act Must Cover Sexual Orientation As Well; Attorney Says

NEW YORK (CBSNewYork) -- The second circuit court of appeals in New York City has been hearing arguments in the case of a New York man who was fired because he's gay.

It was extraordinary, and awkward as a judge pointed out, to have the federal government arguing both sides of the case, WCBS 880's Alex Silverman reported.

The Equal Employment Opportunity Commission was on the plaintiff's side, arguing that when the Civil Rights Act says 'sex discrimination' it covers discrimination based on sexual orientation.

The Justice Department was there to argue the opposite. The judges seemed skeptical and asked why the DOJ joined the case late and whether the civil rights division was consulted.

To audible gasps, a DOJ lawyer refused to answer.

"They saw the DOJ position for what it is, a convenient biscuit to throw to a conservative base as opposed to being a principled recitation of the law," Lambda Legal attorney Greg Nevins said.

He and Greg Antolino -- the attorney for Don Zarda, a Long Island skydiving instructor who was fired when his boss found out he was gay -- said they felt the judges were receptive to their arguments.

"We're very hopeful," Zarda said.

"They seem to say, if Denise Zarda wouldn't be fired for an attraction to men, then Don Zarda shouldn't have been fired," Nevins said.

That the full court was willing to hear this case signals a willingness to revisit the longstanding precedent after the seventh circuit opened the door in a similar case earlier this year.

"The Supreme Court has to address the split in the circuits, whatever happens today there will continue to be a split in the circuits that the Supreme Court has to take up," Lambda Legal CEO Rachel Tiven said.