On the same day President Donald Trump unexpectedly announced that transgender people will not be allowed to serve in any capacity in the United States military, the Department of Justice delivered a setback of its own to gay workers.
Sexual orientation is not a basis to protect someone from discrimination in the workplace, according to the DOJ’s brief filed at the U.S. Court of Appeals for the Second Circuit.
“The sole question here is whether, as a matter of law, Title VII [of the Civil Rights Act of 1964] reaches sexual orientation discrimination,” the brief states. “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 case in question is that of Zarda v. Altitude Express. Donald Zarda was a skydiving instructor who filed a suit against his employer in 2010 after he was allegedly fired for disclosing to a customer that he was gay. The Second Circuit ruled against Zarda but the case has been appealed. Zarda passed away in a base jump accident in October 2014, so two executors of his estate have taken over as plaintiffs.
The DOJ is not a plaintiff for the case but was invited to provide its stance.
The Equal Employment Opportunity Commission (EEOC) was also afforded the opportunity to weigh in. In its own brief, filed on June 23, the EEOC states, “Because such claims necessarily involve impermissible consideration of a plaintiff’s sex, gender-based associational discrimination, and sex stereotyping, the EEOC believes they fall squarely within Title VII’s prohibition against discrimination on the basis of sex.”
Like the Justice Department, the EEOC also notes that previous rulings have not concluded that Title VII protects on the basis of sexual orientation. But this has changed in recent years, the EEOC points out. Citing the cases of Simonton v. Runyon and Dawson v. Bumble & Bumble, the EEOC writes:
“This court concluded seventeen years ago that ‘Title VII does not prohibit harassment or discrimination because of sexual orientation.’ In the years since this court decided Simonton and Dawson, however, the EEOC and an increasing number of courts (including, most recently, the Seventh Circuit sitting en banc) have analyzed the issue and come to the opposite conclusion.”
In both Simonton v. Runyon (2000) and Dawson v. Bumble & Bumble (2005), the Second Circuit ruled that Title VII does not protect individuals based on sexual orientation.
No appellate court in the United States had ever ruled that sexual orientation is a basis for protection under Title VII until earlier this year. In April, the Seventh Circuit ruled 8-3 in favor of Kimberly Hively, who sued her employer Ivy Tech Community College. According to Hively, she was passed up for promotions and position opportunities after disclosing to her employer that she is a lesbian.
“For many years, the courts of appeals of this country understood the prohibition against sex discrimination to exclude discrimination on the basis of a person’s sexual orientation,” Chief Judge Diane Wood wrote for the majority. “We conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination.”
The DOJ brief said the Seventh Circuit’s decision came from theories “without merit.”
The Seventh Circuit reached its decision after reviewing two decades’ worth of U.S. Supreme Court decisions pertaining to gay rights across the spectrum, according to Wood — including the 2015 landmark ruling legalizing gay marriage.
In a statement regarding Wednesday’s two decisions James Esseks, director of the American Civil Liberties Union’s LGBT & HIV Project, said in a statement:
“On the day that will go down in history as Anti-LGBT Day, comes one more gratuitous and extraordinary attack on LGBT people’s civil rights. The Sessions-led Justice Department and the Trump administration are actively working to expose people to discrimination.
“Fortunately, courts will decide whether the Civil Rights Act protects LGBT people, not an Attorney General and a White House that are hell-bent on playing politics with people’s lives. We are confident that the courts will side with equality and the people.”
“Attacks against the LGBTQ community at all levels of government continue to pour in from the Trump-Pence Administration,” said Sarah Warbelow, legal director for the Human Rights Campaign (HRC), in a statement.
“For over a decade, courts have determined that discrimination on the basis of LGBTQ status is unlawful discrimination under federal law,” Warbelow continued. “Today’s filing is a shameful retrenchment of an outmoded interpretation that forfeits faithful interpretation of current law to achieve a politically-driven and legally specious result.”
Congressman John Lewis of Georgia also weighed in on Twitter on Wednesday evening.
I fought too long to end discrimination based on race and color to allow discrimination based on gender identity to be considered acceptable
— John Lewis (@repjohnlewis) July 27, 2017
In response to Lewis, Cecillia Wang, deputy legal director for the American Civil Liberties Union (ACLU), agreed that an attack on one group of people is an attack on everyone:
“When he comes for any one of us, he will be met by an army of people who see & love each other’s humanity & equal right to live and serve.”
When he comes for any one of us, he will be met by an army of people who see & love each other’s humanity & equal right to live and serve.
— Cecillia Wang (@WangCecillia) July 27, 2017