The Department of Justice filed a brief Wednesday night arguing that a landmark federal law does not prohibit discrimination based on sexual orientation.
The filing occurred in a US Second Circuit Court case, Zarda v. Altitude Express. The case was first brought forward in 2010 by Donald Zarda, a now deceased skydiving instructor, who alleged he was fired because of his sexual orientation, according to The New York Times.
The DOJ’s brief weighed in on whether or not Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination on the basis of sexual orientation. Title VII does ban workplace discrimination based on sex, race, colour, national origin, and religion.
Much of the debate about Title VII swirls around whether the word “sex” also pertains to sexual orientation and gender identity.
Rulings from federal appeals courts are all over the place when it comes to interpretation of the law. In 2000, the Second Circuit Court ruled in the case of Simonton v. Runyon that the law did not cover discrimination based on sexual orientation.
In April, the Seventh Circuit Court ruled that discrimination based on sexual orientation does violate federal law in the case Hively v. Ivy Community College.
The DOJ is now reversing the position it held during Barack Obama’s presidency — that discrimination based on sexual discrimination violated the Civil Rights Act of 1964.
In a statement to Business Insider, the DOJ said:
“Today’s brief is consistent with the Justice Department’s longstanding position and the holdings of ten different Courts of Appeals. The brief also reaffirms the Department’s fundamental belief that the courts cannot expand the law beyond what Congress has provided. This Department remains committed to protecting the civil and constitutional rights of all individuals and will continue to enforce the numerous laws Congress has enacted that prohibit discrimination on the basis of sexual orientation.”
Employment lawyer and partner at Constangy, Brooks, Smith, and Prophete LLP, Jonathan Yarbrough, says that, until the laws surrounding workplace discrimination are clarified by the Supreme Court or reworked in Congress, it’s likely that we will continue to see back-and-forth rulings continue.
He adds that the US Equal Employment Opportunity Commission (EEOC) is openly clashing with the DOJ on this issue, as it interprets the law to ban discrimination based on sexual orientation.
“If I got a Title VII charge today from a client and it was based on sexual orientation, I would be telling them, ‘Look, at least at the EOOC level, if there is discrimination here on the basis of sexual orientation, we’re probably going to get a cause finding,'” he tells Business Insider.
For now, the five-person EEOC includes one Republican and three Democrat commissioners. President Trump has nominated Janet Dhillon to fill the vacant spot, and her Congressional approval is pending. Typically, the EEOC includes three members from the party controlling the White House and two members from the opposition party, so it’s likely that the body will become majority Republican under the Trump administration.
Yarbrough says he’s curious to see whether the EEOC flips on the issue if and when it becomes majority Republican.
“Right now, the DOJ’s saying, ‘Hey EEOC, even though it’s your job to enforce Title VII, we don’t believe you’re doing it right because we don’t believe Title VII addresses sexual orientation,'” he says. “We’ve got a strange situation right here.”
“The flip side is going to be, what is the business community going to do in response to this?” he adds.
Selisse Berry, the founder and CEO of LGBT workplace-equality nonprofit Out and Equal Workplace Advocates, has been working with businesses for 20 years to encourage protections for LGBT workers in the office.
She called the DOJ’s brief, along with Trump’s tweets declaring his intention to bar transgender people from serving in the military, “disappointing.”
Berry says that the rhetoric and DOJ’s briefing may put some LGBT employees who have come out or are planning to come out in “a place of fear.”
“We can be married on Saturday and fired on Monday,” Berry tells Business Insider. “It kind gives permission that discrimination is OK, when we’ve just seen over and over again that it doesn’t help anybody. It doesn’t help the employer and it doesn’t help the employee.”
That being said, Berry says that when she began her advocacy, 4% of Fortune 500 companies had policies protecting LGBT workers — now 96% have such policies.
“They understand the value that LGBT people bring to the workplace,” she says. “They understand that the LGBT community is a market. More and more people are coming out at work all the time. I certainly know that our visibility and our community will continue to advance.”
Berry adds that 20 states now have laws banning discrimination based on gender identity and sexual orientation.
“It’s time for the federal government to stand up and do the same thing,” Berry says.