Department of Justice Files Brief against Title VII Protection for LGBT Employees

The Department of Justice appears to be settling in for a legal fight by arguing that Title VII of the Civil Rights Act does not prohibit employment discrimination based on sexual orientation.  Led by Attorney General Jeff Sessions, the DOJ has filed an amicus brief in support of the defendant in a federal lawsuit in which a plaintiff alleges he was fired for being gay.  The DOJ’s position to limit the scope of Title VII represents the next significant legal hurdle for LGBT activists, which could become the next significant gay rights decision for the Supreme Court.

Employee Files Sexual Orientation Discrimination Lawsuit

The case which aroused the DOJ’s interest began as an employment discrimination lawsuit back in 2010 when Donald Zarda, a skydiving instructor, alleged he was fired for being gay.  According to Zarda, a customer complained to his then-employer, Altitude Express, that he had made comments about his personal life, including that he was gay.  Within days after the customer’s complaint, Altitude Express fired Zarda, leading to a civil rights lawsuit.  Although Zarda died in a base-jumping accident in 2014, the lawsuit continues through his estate representatives.

Central to Zarda’s discrimination claim is his argument that Title VII of the Civil Rights Act prohibits discrimination based on sexual orientation.  Title VII specially prohibits any employment discrimination on the basis of race, color, religion, sex, and national origin, omitting a textual reference to sexual orientation.  Despite this omission, Zarda, and many other LGBT equality activists, maintain that the term “sex” refers not only to biological sex, but also to sexual orientation.  Early in the lawsuit, a federal court in the Eastern District of New York rejected this argument, leading to an appeal from Zarda’s estate.

DOJ Enters Sexual Orientation Discrimination Lawsuit

Last month, the Department of Justice entered the case of Zarda v Altitude Express with an amicus brief that argues Title VII does not prohibit sexual orientation discrimination.  Although the DOJ is not directly involved in the case, the department wrote that the federal government, which is the largest single employer in the US, has a direct interest in the manner in which Title VII is interpreted.  The DOJ’s amicus brief zeros in on the question of whether or not Title VII prohibits sexual orientation discrimination, and the department claims that under the law’s current structure such a protection does not exist.  Further, the DOJ argues that any changes to the language and interpretation of Title VII fall to Congress, not the courts.

As part of its argument, the DOJ specifically addresses a series of cases which have toed the line between prohibiting discrimination based on violations of gender norms (i.e., companies cannot fire a man for being too effeminate or a woman for being too masculine), without taking the final step towards protecting sexual orientation.  Although the case law makes for a confusing set of standards which open themselves to interpretation for parties both for and against expanding Title VII protections, the DOJ is not wrong in its claim that very few courts have been willing to expand Civil Rights law.

However, the issue is far from being as settled as the DOJ argues.  Not only has the EEOC adopted a position contrary to the DOJ, but a recent decision in federal court also expanded Title VII to encompass sexual orientation discrimination.

Employment Discrimination the Next LGBT Rights Battleground

Although the DOJ was not directly included in Zarda v Altitude Express, it is no surprise that the agency inserted itself into the lawsuit with an amicus brief.  In the years following Obergefell’s landmark decision to prohibit legislative bans of gay marriage, the LGBT community has continued to utilize the court system to expand civil rights protections for gay, lesbian, and transgender citizens.  While there have been several areas of interest throughout this legal movement, employment discrimination has arisen as a primary focus for LGBT activists.

With the Republican controlled Congress unlikely to expand Title VII, gay rights advocacy organizations have taken up the argument that the law does not need to be expanded because its existing prohibition on discrimination based on gender norms does, in fact, cover sexual orientation.  Although the Obama-era DOJ never overtly advanced such a claim, the previous administration allowed the EEOC to take that position, and several federal courts have begun to more seriously consider the argument.  Earlier this year the 7th Circuit Court of Appeals in Chicago ruled in favor of LGBT protections, signaling a break from other circuits which have been unwilling to take the final step.  Ultimately, the issue is likely to be addressed by the Supreme Court, and the DOJ’s recent amicus brief gives a good indication of where the Attorney General and Trump Administration will stand when the time comes.

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