The Justice Department Just Argued Against Protections for LGBT People in the Workplace

The Department of Justice argued in a federal lawsuit on Wednesday that the Civil Rights Act of 1964 doesn’t protect LGBT workers from discrimination in the workplace, going against a decision reached by the Equal Employment Opportunity Commission under the Obama administration.

This argument is particularly surprising coming from a department that isn’t a party in the case and doesn’t typically intervene in private employment lawsuits. The New York Times reports that the case, based in New York, is a private dispute between an employee and his boss over gay rights issues and wouldn’t normally involve the Justice Department. That didn't stop the DOJ from involving themselves.

The Times reports the lawsuit was initially filed by skydiving instructor Donald Zarda in 2010, after he alleged the company he worked for, Long Island-based Altitude Express, fired him because of his sexual orientation. Zarda said he had told a female client he was gay, trying to make her more comfortable with being tightly strapped together during the jump. Her husband filed a complaint with the company, which in turn terminated Zarda, who alleged that he was fired because of his sexual orientation.

Seven years later, the Justice Department has weighed in on this case and contended in an amicus brief (i.e. an argument from someone not involved in the trial) that the civil rights law which bans sexual discrimination does not cover sexual orientation, according to BuzzFeed News

“The sole question here is whether, as a matter of law, Title VII [of the Civil Rights Act of 1954] reaches sexual orientation discrimination,” the brief stated. “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 also argued that Title VII only applies if men and women are treated unequally in the workplace. “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, and sexual orientation discrimination simply does not have that effect,” the brief continued.

Title VII’s scope has been a source of conflict for years, with the Obama administration arguing that the law included gender identity, protecting transgender workers, but never that the law’s scope included sexual orientation. However, the EEOC filed their own amicus brief a few weeks ago, supporting Zarda in his case, and the Seventh Circuit Court of Appeals recently ruled in favor of a woman who experienced sexual orientation discrimination in the workplace in what many consider to be a landmark case.

BuzzFeed reports that James Esseks, the director of the American Civil Liberties Union’s LGBT & HIV Project, said in a statement that this DOJ intervention and President Trump’s tweets barring transgender individuals from serving in the military were a direct attack on gay rights.

“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,” Esseks said. “The Sessions-led Justice Department and the Trump administration are actively working to expose people to discrimination.” He added, “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."

Zarda died in a base-jumping accident in 2014, but the decision of his ongoing case could have repercussions for decades to come.