DOJ says Title VII doesn’t cover LGBT bias

On the same day President Trump tweeted that transgender individuals could no longer serve in the armed forces, the U.S. Department of Justice filed a friend-of-the-court brief arguing that federal law does not protect lesbian, gay, bisexual and transgender employees from workplace discrimination.

The DOJ filed the amicus brief July 26 in a 2nd Circuit Court of Appeals case alleging that a New York skydiving instructor was fired because he mentioned to a customer that he was gay.

The plaintiffs in Zarda, et. al. v. Altitude Express claim that’s a violation of Title VII of the Civil Rights Act.

Title VII does not name sexual orientation as a protected characteristic.

However, during the Obama administration, both the EEOC and the Department of Justice declared their position that discrimination on the basis of sexual orientation and gender identity is, de facto, a form of sex discrimination under Title VII.

Several lower courts and the 7th Circuit Court of Appeals have recently agreed.

The DOJ brief directly challenges that interpretation.

It states that although the EEOC “has filed an amicus brief in support of the employee , the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.”

The Justice Department explicitly calls on the 2nd Circuit to reject the 7th Circuit’s reasoning earlier this year in Hively v. Ivy Tech Community College, which held that workplace discrimination on the basis of sexual orientation is illegal because it violates Title VII’s sex discrimination prohibitions.

Hively marked the first time a federal appeals court ruled that federal law protects LGBT workers from discrimination.

The DOJ brief called that a bridge too far, stating, “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.”