In an unprecedented break from decades of LGBTQ workplace policies, the Department of Justice filed a brief on Wednesday claiming that the Civil Rights Act of 1964 does not protect gay workers from discrimination.
DOJ filed an amicus (or "friend-of-the-court") brief in a case now before the 2nd U.S. Circuit Court of Appeals concerning the dismissal of a gay employee named Donald Zarda. At the time, Chief Judge Diane Wood wrote: "It would require considerable calisthenics to remove the "sex" from 'sexual orientation.' The effort to do so has led to confusing and contradictory results ... such an effort can not be reconciled with the straight-forward language of Title VII".
But now the Justice Department, stepping in even though they are not a party in the case, has weighed in.
The DOJ filed the brief in the case of Donald Zarda, who had filed suit against his former employer Altitude Express in a case that questions whether sexual orientation is included in Title VII's protections. The three-judge panel denied Zarda's claim in April 2017, but held that Zarda would be entitled to a new trial if the full Second Circuit agreed with his arguments about Title VII of the Civil Rights Act. After a lower court ruled and the case was appealed, the 2nd Circuit invited outside parties to contribute. "This court should reaffirm its precedent holding that Title VII does not prohibit discrimination because of sexual orientation".
LGBT workers in 28 USA states can be fired over their sexual orientation, according to the ACLU.
There's little chance of a bill broadening Title VII passing in the current Republican-controlled Congress, nor is there much chance of passing any other legislation to ban discrimination based on sexual orientation and/or gender identity.
The New York appeals court is slated to hear arguments in September.
James Esseks, director of the American Civil Liberties Union's LGBT and HIV Project, said in a statement that he was relieved that the courts could interpret the Civil Rights Act, rather than Attorney General Jeff Sessions and the rest of the Trump Administration. 50 companies filed a brief for the case advocating for LGBT employees' right to sue for discrimination. His lawyers have been arguing that sexual orientation is covered under Title VII's protections, which "prohibit employers from discriminating against employees on the basis of sex, race, color, national origin, and religion".
Federal appeals courts have been split over whether the ban on sex discrimination also bars anti-gay discrimination.
Its filing in the Second Circuit case this week extends what has been a years-long debate over the scope of Title VII.