On Wednesday evening, the Department of Justice moved to undermine rights for LGBTQ people to ensure they are treated fairly in the workplace. The department filed a brief arguing that prohibition of sex discrimination under federal law does not include the prohibition of discrimination on the basis of sexual orientation.
The federal law in question is Title VII, which is part of the Civil Rights Act of 1964. Title VII prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion.
The case before the U.S. Second Circuit Court of Appeals, Zarda v. Altitude Express, centers on a now deceased skydiver. In 2010, Zarda said he was fired because of his sexual orientation. In April, the Second Circuit decided that it would not accept the argument that discrimination on sexual orientation isn’t permitted under Title VII. However, Lambda Legal requested that the ruling be reconsidered, which is why the Justice Department planned to file its amicus brief.
The power of the federal government to influence LGBTQ workplace rights can’t be underestimated, said Sharita Gruberg, associate director of the LGBT Research and Communications Project at the Center for American Progress. ThinkProgress is an editorially independent news site housed in the Center for American Progress Action Fund.
“It is the Justice Department of the U.S. It’s not just anyone, so it’s definitely going to have a lot of weight because it is the position of the U.S. government, so it will be interesting to see how Second Circuit takes those arguments,” Gruberg said.
The role of Title VII in protecting lesbian, bisexual, and gay people against discrimination has been fuzzier than the issue of whether it can protect transgender people from discrimination. The U.S. Equal Employment Opportunity Commission recognized that Title VII protects transgender people from discrimination in 2012. In 2015, the agency also held that Title VII covers claims of discrimination on the basis of sexual orientation. But court decisions on sexual orientation protections have been mixed.
The strongest decision for the recognition of sexual orientation discrimination under Title VII was in Hively v. Ivy Community College, in which the Seventh Circuit held that sexual orientation was covered under sex discrimination in Title VII for three reasons. In that ruling, Chief Judge Diane Wood referenced Price Waterhouse V. Hopkins, a case that is commonly used to support sexual orientation as protected through Title VII by arguing that says sex discrimination includes sex stereotyping. If a stereotypical woman is considered to be heterosexual, then dating women is a failure to conform. Looking at it another way, if a woman were a man dating a woman she would not face discrimination; therefore she is facing discrimination because she is a woman. And yet another way to consider discrimination would to look at the matter of association. The Loving v. Virginia case found that discrimination based on association with someone of a different race is discrimination on the basis of race. In the case of sexual orientation, Wood used this “associational theory” to say that a refusal to promote someone based on their association with someone of the same sex qualifies as sex discrimination.
Gruberg said that with conflicting decisions from the courts, including a March 11th Circuit ruling that Title VII does not cover sexual orientation, and statements from judges such as Chief Judge Robert Katzmann of the Second Circuit U.S. Court of Appeals that discrimination on the basis of sexual orientation is likely covered under Title VII, the issue could come before the U.S. Supreme Court.
“There has been an indication last time they considered this, where Chief Katzmann noted that this is still a developing issue in courts and he felt that court should reexamine whether sex orientation discrimination is covered under Title VII, so it has been mixed,” Gruberg said. “We’re already at a circuit split so it’s something I am convinced is going to be in front of the Supreme Court soon.”
In the brief, the Justice Department noted in Hively, Judge Diane Sykes said sex as “common, ordinary usage in 1964” means “biologically male or female.” Gruberg, who commented before the brief was released, said it would not make sense for the department to address gender identity, given the courts’ past rulings.
“Courts have been much more willing to see that gender identity discrimination is straight up sex discrimination. That has not really been a question. Sexual orientation is a little bit [of a question], so it is shocking that DOJ would bring that [gender identity] up,” Gruberg said. “That is not as contested in federal courts and yet they are bringing it up as an assault on the idea that trans people have civil rights protections.”
Gruberg said that the department will likely take the most prevalent argument against including sexual orientation and say that the statute doesn’t explicitly mention sexual orientation.
“But it doesn’t say sex stereotyping either, and the courts ruled on that, and it doesn’t mention sexual harassment but we now see harassment as covered,” Gruberg said. “What it means under Title VII has been understood as far more broad than what Congress in 60s believed it meant… It is a willful disregard of the evolving definition of sex discrimination.”]