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Department of Justice and Big Business Present Opposing Opinions on Title VII Coverage

Tuesday, August 1, 2017   (0 Comments)
Posted by: Phil Akroyd
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Many large companies and the Department of Justice (DOJ) have weighed in on a Federal court case, with opposing views on whether discrimination based on sexual orientation should be illegal.

The case is an ongoing one in the 2nd U.S. Circuit Court of Appeals in Manhattan.  It involves Donald Zarda, who filed suit against his former employer Altitude Express, and questions whether sexual orientation is included in Title VII’s protections.  Zarda was fired by his employer as a skydiving instructor after he told a customer that he was gay.

The companies interested in covering LGBTQ employees under Title VII (including Google, Microsoft, CBS, and Viacom) asked the 2nd Circuit to revisit the lawsuit after a panel of three 2nd Circuit judges dismissed Zarda’s case in April, saying that discrimination against gay workers is not a form of sex discrimination under Title VII of the Civil Rights Act of 1964.  Last month, the full court, which can overturn the prior ruling, agreed to review the case.

Following the brief filed to the court by the companies asking to take another look at the case, the Department of Justice responded.  The Justice Department filed an amicus brief to the court on Wednesday saying that Title VII of the Civil Rights Act of 1964 does not cover employment “discrimination based on sexual orientation.”

A report at described the legal grey area under the previous Presidential administration as follows: “The DOJ under former President Barack Obama had never gone all the way toward unequivocal affirmative support of sexual orientation being covered under Title VII in lawsuits. It simply allowed the Equal Employment Opportunity Commission, the federal agency charged with protecting workers against job discrimination, to make the arguments without incident.   Lower Federal courts have been split on this issue for years.”

While the recent opposing opinions are an interesting development in an ongoing case, they also provides some insight into the direction of the current Presidential administration.  When campaigning, candidate Trump said he would protect the rights of the LGBTQ community, but the actions of the DOJ suggest otherwise.

Furthermore, it continues the trend of conflicting decisions in lower courts, so at some point in the future, this could go to the Supreme Court to decide, but that may take a long time to get a decision.

One way to provide clarity on this issue would be to amend the current laws through the senate to add sexual orientation as a protected group, but, with little bipartisan cooperation in Washington D.C., that too may be a long process.

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