By Nora Huxtable, Law Clerk |
LGBT workers’ rights are under attack (again), and this time it’s the U.S. Department of Justice (DOJ) weighing in against LGBT employees. Last week, the DOJ filed an amicus curiae brief in a 2nd Circuit case called Zarda v. Altitude Express, urging the court not to read sexual orientation protection into Title VII of the Civil Rights Act of 1964. Title VII is the federal law that protects employees from discrimination on the basis of race, color, national origin, sex, and religion. The question is whether the term “sex” in Title VII includes “sexual orientation.”
Title VII is enforced by the Equal Employment Opportunity Commission (EEOC), and the EEOC interprets “sex” to include “sexual orientation.” This is the basis of Zarda’s case.
Seven years ago, a skydiving instructor from New York named Donald Zarda prepared for a tandem jump. Zarda was paired with a woman, and trying to relieve any awkwardness she may have had about being strapped so closely to a man, he mentioned to her that he was gay. The woman’s boyfriend found out and complained to Zarda’s employer. Zarda was fired shortly thereafter. He filed suit in federal district court for sexual orientation discrimination under Title VII.
Zarda argued that Title VII protects sexual orientation in the workplace because it prohibits discrimination on the basis of “sex.” This is a hot topic in employment law, as the federal appeals courts are split on the subject: The 7th Circuit recently held that LGBT employees are protected under Title VII, but the 2nd Circuit ruled against such protections 15 years ago.
Throughout this process, Zarda had the EEOC on his side, which lends power and credence to his case. But in a surprise move on Wednesday, the Justice Department entered the clash with an amicus brief in support of the employer.
In its amicus brief, the DOJ states that Title VII does not “reach discrimination based on sexual orientation,” as it is not expressly written into the Act. This argument has merit because Congress has had several opportunities to amend Title VII to include sexual orientation, but they have not done so. It also states (accurately) that the “sex includes sexual orientation” argument is a relatively recent development in American law. In essence, the DOJ argues that disparate treatment of “homosexual employees” is perfectly allowable under Title VII, so long as gay men and gay women are treated equally poorly.
Although the DOJ can provide guidance that may be persuasive to courts in this or other cases, it does not carry the weight of law. But the surprise move by the DOJ suggests a sudden about-face from the Obama administration’s liberal interpretation of nondiscrimination policy, especially for LGBT employees.
Fortunately, the DOJ cannot loosen state-based nondiscrimination policies. Here in Minnesota, for example, the Minnesota Human Rights Act provides protections against sexual orientation discrimination in the workplace. Some cities and towns have their own nondiscrimination ordinances that provide additional protection. But make no doubt: cases like this will continue to arise in district courts throughout the country, and until the Supreme Court provides guidance on Title VII, the fight will continue.
Schaefer Halleen stands against any type of workplace discrimination, and we aggressively pursue justice for our clients. If you are a victim of workplace misconduct, the attorneys at Schaefer Halleen are here to help you. We have years of experience representing members of the LGBT community, and we will fight for your rights.