In Shameful Brief, Department of Justice Rejects Protections for Gay and Bisexual Workers

By Adam Polaski • July 27, 2017 • 2:40 pm

Last night the Trump Administration dealt another blow to the LGBTQ community when the Department of Justice filed a “friend-of-the-court” brief to the U.S. Court of Appeals for the 2nd Circuit in Zarda v. Altitude ExpressInc., rejecting the increasingly understood concept that federal laws prohibiting sex discrimination also prohibit discrimination based on sexual orientation.

The brief, in which the Department of Justice repeatedly refers to members of the lesbian, gay, and bisexual community as “homosexuals,” takes an outdated perspective on the definition of sex-based discrimination, arguing that Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on sex discrimination, does not extend to prohibiting discrimination based on sexual orientation and gender identity.

The Department of Justice’s brief says: “The 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.”

Katie Belanger, Acting CEO & President of Operations at Freedom for All Americans, said today:

“By filing this brief, the Department of Justice is arguing that employers are perfectly free to discriminate against employees based on sexual orientation. That position directly contradicts arguments made last month in this same case from the Equal Employment Opportunity Commission, the federal agency charged with ensuring American workers don’t face unfair discrimination. The Trump administration, including Jeff Sessions and the Department of Justice, have needlessly and aggressively forced their way into this case, advocating once again for anti-LGBTQ discrimination.”

Belanger continued: “But despite their efforts, it’s important to keep in mind that one mean-spirited legal brief can’t undo the growing legal consensus – from judges, thought leaders, elected officials, and the business community – that Title VII protects LGBTQ people from employment discrimination. We’ll continue working to support our legal partners and build momentum until no one faces discrimination because of who they are.”

The Equal Employment Opportunity Commission, a federal agency that establishes guidelines and typically receives significant deference, has held for years now that Title VII prohibits discrimination based on LGBTQ identity. Courts have deferred to the EEOC’s interpretation repeatedly in recent years. In the Zarda case, the EEOC filed its own “friend-of-the-court” brief putting forth its argument once again.

Zarda v. Altitude Express, Inc. will be heard en banc, meaning before the full court, by the 2nd Circuit Court of Appeals based in New York, which has jurisdiction over Connecticut, Vermont and New York. The full full court will reconsider an exclusionary 17-year-old legal precedent that states employment discrimination based on sexual orientation is not prohibited under federal law. The case is being led by Gregory Antollino, a lawyer in New York with a long history of trying employment discrimination cases.

At the end of June dozens of amicus briefs were filed urging the 2nd Circuit to recognize that Title VII protects people from discrimination based on sexual orientation.

Among the influential voices speaking out were the Attorneys General of the three states represented by the 2nd Circuit (Connecticut, New York, and Vermont), several members of the United States Congress, the aforementioned EEOC, and 50 businesses representing more than 370,000 employees.

The signatories of the business brief, which Freedom for All Americans was proud to coordinate and sign, included Microsoft, Viacom, Spotify, Ben & Jerry’s, Levi Strauss & Co., and more, representing companies large and small, local and multinational, spanning a diverse geographic region. It marked the first time that businesses have explicitly taken the legal position that discrimination in employment based on sexual orientation is illegal under Title VII of the Civil Rights Act.

Courts are increasingly catching up to public opinion on the issue of LGBT equality in the workplace. A groundbreaking decision from the full 7th Circuit Court of Appeals in April in a case filed by Lambda Legal held that employment discrimination based on sexual orientation is illegal under Title VII of the Civil Rights Act of 1964 — the first time a federal appellate court has ever reached this conclusion.

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