U.S. Department of Justice Files Legal Brief Declaring Title VII Does Not Include Homosexuality

Photo Credit: Department of Justice

WASHINGTON — The U.S. Department of Justice has filed an amicus brief declaring that Title VII of the Civil Rights Act of 1964 does not pertain to homosexuality.

“The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination,” it wrote. “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 the “friend of the court” brief in the case of Zarda vs. Altitude Express, which centers on skydiving instructor Donald Zarda, who was fired by his employer following a complaint from the boyfriend of a female diver.

“Zarda often informed female clients of his sexual orientation—especially when they were accompanied by a husband or boyfriend—to mitigate any awkwardness that might arise from the fact that he was strapped so tightly to the woman,” legal documents outline.

Altitude Express told Zarda that he was fired because he “failed to provide an enjoyable experience for the customer” as David Kengle, the boyfriend of Rosanna Orellana, complained to the company about Zarda’s remarks.

Zarda sued his employer in 2010 for discrimination, but died in a skydiving accident before the matter went to trial. The executors of his estate decided to keep the case active, but a district court ruled that while the suit may proceed, Title VII of the Civil Rights Act does not apply to homosexuality.

The Second Circuit Court of Appeals agreed, and the argument is now being considered for an en banc—or full court—appeal.

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Title VII prohibits discrimination of the basis of race, color, religion, sex and national origin, and some have construed the inclusion of “sex” in the law to pertain to “sexual orientation.” However, others state that the original intent of including sex in the statute was to prohibit employers from treating female workers differently than male employees.

“The essential element of sex discrimination under Title VII is that employees of one sex must be treated worse that similarly situated employees of the other sex, and sexual orientation discrimination simply does not have that effect,” the Department of Justice contended in its amicus brief this week.

“Moreover, whatever this court would say about the question were it writing on a blank slate, Congress has made clear through its actions and inactions in this area that Title VII’s prohibition of sex discrimination does not encompass sexual orientation discrimination,” it said.

Homosexual advocacy groups have expressed disappointment with the government’s filing.

“In one fell swoop, Trump’s DOJ has provided a roadmap for dismantling years of federal protections and declared that lesbian, gay, and bisexual people may no longer be protected by landmark civil rights laws such as the Fair Housing Act, Title IX, or Title VII,” said Sarah Warbelow, legal director for the Human Rights Council, in a statement on Wednesday.

“[The] filing is a shameful retrenchment of an outmoded interpretation that forfeits faithful interpretation of current law to achieve a politically-driven and legally specious result,” she asserted.

The Equal Employment Opportunity Commission had sided with Zarda, but the Department of Justice says that the Commission was “not speaking for the United States.”

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