USA: Justice Department: Gays not protected under Title VII

USA: Justice Department: Gays not protected under Title VII
USA: Justice Department: Gays not protected under Title VII


The Justice Department has filed papers taking stand against a decision taken during President Barack Obama regime contending that the major federal civil rights law does not extend its protection to employees from discrimination based on their sexual orientation.

It is an unusual instance where the top officials in Washington are getting involved in a federal case in New York in an essential but significantly private dispute between an employer and employee over gay rights issue.

Referring to the 1964 Civil Rights Act, the Justice Department stated in a friend-of-the-court brief that as a matter of law, the question is whether Title VII extends to sexual orientation discrimination. It also stated that any endeavors to amend Title VII’s scope ought to be directed to Congress instead of the courts.

The brief was filed by the department on 26th July, 2017, the same day when President Donald Trump tweeted stating the ban on transgender people from serving the military. This tweet has raised the concerns of the civil rights activists that the Trump regime is threatening the lesbian, gay, bisexual and transgender rights acquired during the Obama administration.

Brief filed in the case of Mr. Zarda:

The submissions were filed before the United States Court of Appeals for the Second Circuit which is hearing a discrimination case involving Donald Zarda, a skydiving instructor, who was fired by his employer, a Long Island company called Altitude Express, in 2010. Prior to taking a women client on a tandem dive, Mr. Zarda told the client that he was gay to avoid any awkwardness as he was to tightly strap himself to her during the jump. The woman’s husband complained to the company which resulted in Mr.Zarda getting fired from his job. Subsequently, he sued the company for violating Title VII.

In 2015, a lower court in Long Island ruled against Mr. Zarda, despite the E.E.O.C ruling, that sexual orientation is not a part of civil rights law’s prohibition against discrimination based on “sex.” This decision was upheld by the Second Circuit in New York in April and noted that it is a long standing stress in Title VII case law.

A contradictory ruling was given by the Federal appeals court in the matter. In 2000, a case regarding abuse of Mr. Dwayne Simonton, a Long Island postal worker, for being gay was being decided where the Second Circuit ruled that though the conduct of Simonton’s co- worker was morally guilty, the language of Title VII does not bar discrimination based on sexual orientation. The ruling also noted that the Congress has again and again refused to include such a provision in the law.

Gregory Antollino, Mr. Zarda’s lawyer, has stated that his client has filed cases against his employer under both state and federal laws. The state case was failed in 2015 as the state requires a higher burden of proof compared to the federal law to prove discrimination. Mr Zarda died by the time the case came up for trial.

Obama Administration vs. Trump Administration:

Justice Department has stepped in the dispute under the Attorney General Jeff Sessions. The department has noted in its brief that since 1974 every congress has refused to add a sexual-orientation provision to Title VII, regardless of what it called “notable changes in societal and cultural attitudes.” Additionally, it also stated that the federal government, being the largest employer in the country, has a “substantial and unique interest” in the proper interpretation of Title VII.

In 2015, under the Obama regime, the Equal Employment Opportunity Commission reached a decision that it was illegal to discriminate on the basis of sexual orientation. It received three Democrats and two Republican votes.

The Trump administration’s Justice Department has also stated in its brief that E.E.O.C., which has filed court papers supporting Mr. Zarda, is not speaking for the United States.

In 2014, Attorney General of Mr. Obama, Eric Holder, had issued a memo stating that when any case comes before it, the Justice Department must take a stand that the protections under Title VII would be extended to include a person’s gender orientation including transgender status. The future of this memo is vague under the Trump administration.

The Obama administration’s legal approach adopted a wait and see attitude as the law continued to develop rather than banning on the basis of sexual discrimination applicable to sexual orientation alone. It allowed the gay rights to evolve over time and not discriminating based on gender stereotypes.

The decision of filing a strong brief by the Justice Department of Trump administration declaring that bias in sex discrimination is not only based on sexual orientation is a notable shift in attitude. It is unclear as to why was a brief filed by the Justice Department and whether it was a stand-alone effort or a part of larger ideological change.

Vanita Gupta, President of the Leadership Conference on Civil and Human Rights, who ran Justice Department’s civil rights division under Mr. Obama, stated that the brief filed by Trump administration is in contravention of recent decisions by the court and the guidance issued by E.E.O.C. She also stated that only political appointees have signed the brief and not the career employees.

The brief filed by the Trump Administration is condemned by the civil rights activists. Mr. James Esseks, the director of the American Civil Liberties Union’s L.G.B.T and H.I.V. project has stated that the Justice Department and Trump administration are exposing people to discrimination. He called the brief a “gratuitous and extraordinary attack on L.G.B.T. people’s civil rights.”

Devin O’Malley, a Justice Department spokesman, stated that the brief was in harmony with the Justice Department’s stand and the decisions of 10 different courts of appeals. He added that the filing reiterates the fundamental belief of the department and that the court cannot expand the law.

There are a few states that have their own laws which ban bias at workplace based on sexual orientation but there are states that do not have such laws. According to Mr. Douglas Wigdor, and employment lawyer in New York City, a federal standard is required orelse quite a few numbers of people will be subjected to such discrimination at work.





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