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DOJ Goes Rogue On Whether Title VII Prohibits Sexual Orientation Discrimination

In an amicus brief filed July 26, 2017, with the Second Circuit Court of Appeals, the Department of Justice declared that an employee’s sexual orientation is not and should not be a protected status under Title VII of the Civil Rights Act of 1964.  Stated simply: sex discrimination does not extend to sexual orientation discrimination because 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.”  Interpreting “sex” to include sexual orientation goes beyond Title VII’s plain text.

The DOJ did confirm its support for a homosexual employee’s ability to challenge workplace discrimination under the sex stereotyping theory of sex discrimination which has been an established opportunity in several federal appellate courts for some time.  The DOJ notes this angle focuses not on the sexual orientation of the employee, but rather, on whether the employer focused on the employee’s sex or gender when mistreating the worker for not conforming to traditional gender stereotypes.

According to the DOJ, “[t]he sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination… 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 DOJ’s brief is directly at odds with the Equal Employment Opportunity Commission, who filed its own amicus brief with the Second Circuit in June, arguing that Title VII must be read to prohibit sexual orientation discrimination.  On that point, the DOJ offered that “although the [EEOC] enforces Title VII against private employers … the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.”

At the end of May, we wrote a blog post explaining the Second Circuit’s decision to have its full panel decide this contentious issue, in Zarda v. Altitude Express, Inc., No. 15-3775 (2d Cir. May 25, 2017) (en banc review granted).

Perhaps not coincidentally, this brief was filed the same day that President Trump announced that transgender people would be barred from serving in the military.

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