Justice Department argues sexual orientation discrimination not covered by Civil Rights Act
Q: On July 26, the U.S. Department of Justice filed a friend of the court brief arguing that Title
VII of the Civil Rights Act doesn’t cover discrimination on the basis of an individual’s sexual preference. What can you tell us about this?
A: The brief was filed in a federal appeals court in
New York in the case Zarda v.
Altitude Express. The case was originally brought in 2010 by a skydiving instructor named
Donald Zarda who alleged he was fired because he revealed to a skydiving student that he was gay. In its brief, the
Justice Department argued that Title VII of the Civil Rights Act of 1964, which prohibits discrimination in the workplace based on “race, color, religion, sex or national origin,” doesn’t extend to sexual orientation discrimination. The brief goes on to state that “Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts.”
Q: How do the Justice Department’s arguments in the Zarda case compare with its position under the Obama administration and those of other federal agencies?
A: The Justice Department’s recent arguments seem to be at odds with its prior pronouncements. Under the Obama administration, the Justice Department issued a memo stating that in any litigation that came before it, the DOJ would take the position that Title VII’s protections would be extended to include a person’s gender identity, including transgender status. Similarly, the Equal Employment Opportunity Commission (EEOC), under the previous administration, issued a ruling directly contrary to the Justice Department’s current stance, and stated its position that sexual orientation discrimination was illegal under Title VII. The Justice Department’s brief in Zarda recognized this conflict and stated that the EEOC “was not speaking for the United States.”
Q: Have the federal courts ruled on the application of Title VII to sexual orientation discrimination?
A: Yes, in fact most of the federal court decisions agree with the position taken by the Justice Department. Even the lower court in the Zarda case found that Title VII’s prohibition of discrimination based on “sex” didn’t include sexual orientation discrimination. However, in April, the U.S. Court of Appeals for the Seventh Circuit ruled in Hively v. Ivy Community College that discrimination based on sexual orientation does violate federal law. It’s important to note that while many courts have held that Title VII doesn’t directly prohibit discrimination based on sexual orientation, a significant number of cases have found Title VII coverage under the theory that Title VII does prohibit discrimination based on gender stereotyping. In these cases, plaintiffs with varying sexual orientations have succeeded in bringing a claim that they were discriminated against because they didn’t fit the stereotype of what it meant to be male or female. A recent case in Oklahoma applied this theory to find that Title VII protections should be afforded to a transgender university professor.
Q: How does the position taken by the Justice Department change things for employers?
A: It changes very little, actually. There are a number of states and localities that do include sexual orientation in their anti-discrimination laws. Even in states like Oklahoma that don’t expressly prohibit sexual orientation discrimination, such discrimination likely would lead to litigation. As noted above, the EEOC, which is responsible for enforcing Title VII, still holds the position that sexual orientation discrimination violates federal law. Thus, employment actions taken on the basis of an employee’s sexual orientation likely still would result in an adverse finding by the EEOC. It still remains to be seen if the Donald Trump administration will change the composition of the EEOC or whether changing the Commissioners will impact the EEOC’s position on sexual orientation discrimination. Moreover, even if the courts don’t agree with the EEOC’s position, most courts do agree that discrimination based on gender stereotyping is prohibited, so an aggrieved employee may bring a stereotyping claim rather than a claim based on direct discrimination against his or her sexual orientation.