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Justice Department Says Rights Law Doesn't Protect Gays
Justice Department Says Rights Law Doesn't Protect Gays

Justice Department Says Rights Law Doesn't Protect Gays

New York Times
July 27, 2017


The Justice Department has filed court papers arguing that a major federal civil rights law does not protect employees from discrimination based on sexual orientation, taking a stand against a decision reached under President Barack Obama.

The department's move to insert itself into a federal case in New York was an unusual example of top officials in Washington intervening in court in what is an important but essentially private dispute between a worker and his boss over gay rights issues.

"The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination," the Justice Department said in a friend-of-the-court brief, citing the 1964 Civil Rights Act, which bars discrimination in the workplace based on "race, color, religion, sex or national origin." "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."

The department filed its brief on Wednesday, the same day President Trump announced on Twitter that transgender people would be banned from serving in the military, raising concerns among civil rights activists that the Trump administration was trying to undermine lesbian, gay, bisexual and transgender rights won under previous administrations.

The filing came in a discrimination case before the United States Court of Appeals for the Second Circuit involving Donald Zarda, a skydiving instructor. In 2010, Mr. Zarda was fired by his employer, a Long Island company called Altitude Express. Before taking a female client on a tandem dive, Mr. Zarda told the woman he was gay to assuage any awkwardness that might arise from his being tightly strapped to her during the jump. The woman's husband complained to the company, which subsequently fired Mr. Zarda. Mr. Zarda then sued Altitude Express, claiming it had violated Title VII.

Under Attorney General Jeff Sessions, the Justice Department has now stepped into the fray. In its brief, the department noted that every Congress since 1974 has declined to add a sexual-orientation provision to Title VII, despite what it called "notable changes in societal and cultural attitudes." The brief also said that the federal government, as the largest employer in the country, had a "substantial and unique interest" in the proper interpretation of Title VII.

In 2015, the Equal Employment Opportunity Commission, under Mr. Obama, issued a contrary ruling, deciding on a vote of three Democrats to two Republicans that discrimination on the basis of sexual orientation was illegal. That ruling, which was reviewed by the Obama administration's Justice Department, did not formally bind the federal courts, although courts often defer to federal agencies when they interpret laws that come under their jurisdiction.

In its brief, the Trump administration's Justice Department said the E.E.O.C., which had also filed court papers supporting Mr. Zarda, was "not speaking for the United States."

In 2014, Eric Holder, Mr. Obama's attorney general, issued a memo stating that in any litigation that came before it, the Justice Department would take the position that the protections afforded by Title VII would be extended to include a person's gender identity, including transgender status. The future of that memo under Mr. Trump remains unclear.

Mr. Holder noted the Trump administration's moves on Twitter on Thursday.

While the Obama administration's legal approach to gay rights evolved over time, it never declared that bans on sex discrimination applied to sexual orientation alone, absent some evidence that the discrimination targeted a person based on gender stereotypes. Rather, it adopted a wait-and-see attitude as the law continued to develop.

Against that backdrop, the Trump Justice Department's decision to file the brief strongly declaring that sex discrimination does not encompass bias based only on sexual orientation was a striking shift in tone.

It was unclear why the Justice Department filed the brief when it did and whether it was a stand-alone effort or part of a larger ideological push.

In 2015, a lower court on Long Island first considered Mr. Zarda's case and ruled against him, deciding, despite the E.E.O.C. ruling, that sexual orientation was not included in the civil rights law's prohibition against discrimination based on "sex." In April, the Second Circuit in New York upheld that court's decision, even though it noted "a longstanding tension in Title VII case law."

Federal appeals courts have issued contradictory rulings on the matter. In 2000, while considering the case of a Long Island postal worker, Dwayne Simonton, who was abused at work for being gay, the Second Circuit ruled that the language of Title VII did not bar discrimination based on sexual orientation. The ruling also noted that Congress had repeatedly declined to include such a provision in the law.

"There can be no doubt that the conduct allegedly engaged in by Simonton's co-workers is morally reprehensible," the court wrote in 2000. It added, however, that "the law is well-settled in this circuit."

Shortly after the new brief was filed, civil rights activists attacked it. In a statement on Wednesday, Vanita Gupta, who ran the Justice Department's civil rights division under Mr. Obama, said the Trump administration's court filing "contravenes recent court decisions and guidance issued by the Equal Employment Opportunity Commission."

On Twitter on Wednesday night, Ms. Gupta, who is the president of the Leadership Conference on Civil and Human Rights, noted that only political appointees, not career employees, from her former office at the Justice Department had signed the brief.

The American Civil Liberties Union called the brief a "gratuitous and extraordinary attack on L.G.B.T. people's civil rights." In a statement, James Esseks, the director of the organization's L.G.B.T. and H.I.V. Project, added, "The Sessions-led Justice Department and the Trump administration are actively working to expose people to discrimination."

In his own statement, Devin O'Malley, a Justice Department spokesman, said the brief was "consistent with the Justice Department's longstanding position and the holdings of 10 different courts of appeals." Mr. O'Malley added that the filing "reaffirms the department's fundamental belief that the courts cannot expand the law beyond what Congress has provided."
Some states like New York have their own laws banning bias in the workplace based on sexual orientation, but several states do not. "Without a federal standard," said Douglas Wigdor, a prominent New York City employment lawyer, "many people could be exposed to discrimination at work just because they're gay."

Mr. Zarda brought claims against his employer under both federal and state law, according to his lawyer, Gregory Antollino. But the state case failed in October 2015 because state law requires a higher burden of proof than federal law to show discrimination, and because by the time it went to trial, Mr. Zarda had died, Mr. Antollino said.


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