The Department of Justice has filed a brief saying that the
Civil Rights Act of 1964 does not prohibit discrimination on the basis of
sexual orientation. 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,
color, 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.