DOJ – Title VII Does Not Include LGBT (Liberty Counsel)

Jul 27, 2017

WASHINGTON, D.C. — The U.S. Justice Department (DOJ) filed an amicus brief in Zarda v. Altitude Express yesterday at the U.S. Federal Court of Appeals, which contends that Title VII of the Civil Rights Act of 1964 bans gender discrimination, but does not include sexual orientation or gender identity, in the workplace.

The Equal Employment Opportunity Commission (EEOC), a largely autonomous federal agency that handles civil rights disputes in the workplace, supported Zarda last month in its own court filing. The EEOC has previously argued in federal court that Title VII’s ban on sex discrimination also included gender identity — thereby barring discrimination against so-called LGBT employees.

The DOJ, which doesn’t typically weigh in on private employment lawsuits, argues in the amicus brief that “the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade. The theories advanced by the EEOC and the Seventh Circuit lack merit and these theories are inconsistent with Congress’s clear ratification of the overwhelming judicial consensus that Title VII does not prohibit sexual orientation discrimination.” The DOJ also contends that Title VII only applies if men and women are treated unequally.

Zarda v. Altitude Express began in 2010 when Donald Zarda, a skydiving instructor, filed suit against his employer in federal court in New York, alleging the company terminated him for his sexual orientation in violation of Title VII. After a lower court ruled and the case was appealed, the 2nd Circuit invited outside parties to contribute. The case is now before a full panel of judges at the court.

“Passed in 1965, the Title VII employment provision does not include sexual orientation or gender identity,” said Mat Staver, Founder and Chairman of Liberty Counsel. “No government entity outside of the legislative process can grant special rights to a subset of the population based on demand or a desire to rewrite the law. Judges are not legislators. Only Congress can amend the federal law, and that diverse body of legislators has rejected several requests to do so. I applaud the DOJ for upholding the rule of law,” said Staver.

Liberty Counsel is an international nonprofit, litigation, education, and policy organization dedicated to advancing religious freedom, the sanctity of life, and the family since 1989, by providing pro bono assistance and representation on these and related topics.