Fresh off a very public shaming, Attorney General Jeff Sessions has kicked his campaign of discrimination into high gear. Following an assault on sanctuary city funding, the Sessions-helmed Department of Justice filed an atypical briefing arguing that Title VII of Civil Rights Act of 1964 did not cover sexual orientation.
Title VII specifically “prohibits employment discrimination based on race, color, religion, sex, and national origin.”
The DOJ weighed in on private employment case currently being heard by Second Circuit U.S. Court of Appeals. As reported by BuzzFeed, the rare filing asserted that a plaintiff suing his former employer for wrongful termination based on sexual orientation was not covered by the 1964 law.
From the Department of Justice’s briefing:
“The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination. 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.”
Donald Zarda, a skydiving instructor who was allegedly fired for his sexual orientation, field the lawsuit against his former employer, Altitude Express. In the suit, Zarda and his lawyers contended that Altitude Express had violated Title VII. However, the Justice Department said in Wednesday’s filing that the section only protected complaints made by men or women who had been treated unequally.
The DOJ argued:
“As the courts have long held, discrimination based on sexual orientation does not fall within Title VII’s prohibition on sex discrimination because it does not involve “disparate treatment of men and women.”
“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 Obama Administration, BuzzFeed noted, had reversed its opposition to sexual orientation’s inclusion in Title VII. Previously, the administration said prior court precedents had prevented it from explicitly defining sexual orientation discrimination as a civil rights violation.
In April, a court ruled in favor of Diane Wood, a lesbian woman who was fired by Ivy Tech Community College in Indiana. The presiding judge accepted the argument that sexual orientation included sex stereotyping and was therefore protected by Title VII.
Zarda, who died in a 2014 skydiving accident, faced mixed court rulings against and in his favor. But, the Justice Department’s incursion into his case likely demonstrates how Sessions’s department will handle future cases of sexual orientation discrimination — not that anymore proof was required.
As American Civil Liberties Union LGBT & HIV Project Director James Esseks said in his comment on the DOJ’s briefing, Wednesday will “go down in history as Anti-LGBT Day.” But, as it has also has ceaselessly declared, the ACLU will continue to fight the Trump administration in court.
“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,” Esseks said in a statement. “We are confident that the courts will side with equality and the people.”