In an unusual step, lawyers from the US Department of Justice submitted an amicus brief in the Second Circuit Court of Appeals in New York on Wednesday opposing the Equal Employment Opportunity Commission’s position that Title VII of the Civil Rights Act of 1964, which bans sex discrimination, also prohibits discrimination on the basis of sexual orientation. BuzzFeed’s Dominic Holden reported on the brief Wednesday evening, noting that the Justice Department, which does not normally intervene in private employment disputes, is not a party in the case:
“The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination,” says the Justice Department’s brief. “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.”
The Justice Department also contends that Title VII only applies if men and women are treated unequally. “The essential element of sex discrimination under Title VII is that employees of one sex must be treated worse than similarly situated employees of the other sex, and sexual orientation discrimination simply does not have that effect,” the brief says.
The brief was submitted in the case of Donald Zarda, a skydiving instructor who sued his former employer in 2010, claiming he had been fired after he told a customer he was gay and she complained. Zarda died in a skydiving accident after filing the lawsuit, but his estate has continued to pursue it. A three-judge panel from the Second Circuit had thrown out Zarda’s claim in April, citing a 2000 ruling in which the court had said Title VII did not apply to LGBT workers, but the full court agreed to hear the case in May.
Last month, 50 employers filed a brief in support of Zarda’s estate, including Microsoft, Apple, Google, CBS, Viacom, Quora, Salesforce, Spotify, Ben & Jerry’s, and Levi Strauss, citing business concerns. Extending Title VII protections to LGBT employees would provide employers more legal clarity than the current patchwork of state and local regulations, they argued, in addition to improving their bottom lines and aiding the US economy.
The EEOC determined that discrimination against LGBT employees violated Title VII and began pursuing lawsuits to that effect in 2015. Last November, a district court judge was the first to agree with the EEOC’s interpretation, and the commission scored a larger victory in April, when the Chicago-based Seventh Circuit Court ruled that Title VII does indeed cover sexual orientation in an en banc rehearing of another case that had earlier been dismissed by a three-judge panel (just as the Second Circuit is doing now).
The Justice Department’s intervention in the Zarda case appears to some as a reversal of President Donald Trump’s previous statements of support for the rights of LGBT Americans. In January, for example, the president pledged to uphold workplace protections for LGBT employees of federal contractors imposed by his predecessor Barack Obama by executive order in 2014.
While the department disputed the EEOC’s interpretation of Title VII on the basis of legal precedent, German Lopez at Vox points out that the EEOC’s position also has case law on its side:
LGBTQ advocates, citing legal precedent, say that what the original laws’ authors believe or intended is irrelevant. Joshua Block, an attorney with the ACLU LGBT and HIV Project, cited a 1998 Supreme Court case, Oncale v. Sundowner Offshore Services Inc., in which the Court unanimously agreed that bans on sex discrimination prohibit same-sex sexual harassment. Same-sex sexual harassment was not something the authors of federal civil rights laws considered, but it’s something, the Supreme Court said, that a plain reading of the law protects.
“Oncale says that’s irrelevant whether [Congress] contemplated it,” Block previously told me. “This is literal sex discrimination. Whether or not that’s what Congress was focused on doesn’t make it any less a type of discrimination covered by the statute.”
How the court will rule in the Zarda case is impossible to predict, as is the future trajectory of judicial opinion on this issue. Bloomberg’s Erik Larson notes that other organizations, particularly religious groups, have also weighed in against extending protections to LGBT workers, and that not all courts have been willing to back the EEOC’s interpretation:
The Christian Legal Society and National Association of Evangelicals also weighed in on Wednesday, pointing out that courts have previously rejected interpreting “sex” in the meaning of Title VII to include “sexual orientation.” The groups also said that Zarda has other legal remedies in New York and that many companies already offer protection without a federal law. …
Some appeals courts remain unpersuaded by arguments like Zarda’s. In March, an appeals panel in Georgia rejected a security officer’s sex-discrimination claim. “Because Congress has not made sexual orientation a protected class,” Judge William Pryor wrote in that case, “the appropriate venue” for pressing the argument is before Congress, “not this court.”
This question may ultimately be a candidate for consideration in the US Supreme Court, particularly if another circuit court issues a ruling contrary to that of the Seventh Circuit. Employers don’t need to wait for the courts to decide, however: Organizations that value inclusivity should make sure their HR policies protect LGBT employees against discrimination and harassment, regardless of what the law requires.