LGBT workplace rights and protections at stake after DOJ announcement

Court gavel

The United States Department of Justice filed court papers that state Title VII does not cover or protect those who are LGBT against workplace discrimination. The papers, filed in the Second Circuit Appeals Court, is in response to a case brought by sky diving instructor Donald Zarda against his former employer Altitude Express.

Zarda’s case against Altitude Express is in response to him being fired for stating his sexual orientation to a female client. Zarda made the disclosure in order to ease any awkwardness the client may feel being strapped to his front during a tandem jump. In turn, the woman’s husband complained to the company who then fired Zarda. The subsequent lawsuit claimed the firing violated Title VII of the 1964 Civil Rights Act, which bars discrimination in the workplace based on race, color, religion, sex, or national origin.

This is the second time the Department of Justice has made a move against the LGBT community. Earlier this year, the Department declined to further oppose an injunction that would have kept transgender citizens from using the bathroom corresponding to their gender identity.

“The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination,” the Justice Department brief says. “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.” It adds: “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.”

Sexual orientation under Title VII has been a bit hazy, with no clear ruling on it being included. In 2012, the Equal Employment Opportunity Commission did find that Title VII covers transgender citizens, but there has been no cut and dry ruling on this. In 2015, the EEOC did include sexual orientation as well but court rulings have made that a gray area.

Civil rights groups and LGBT advocacy groups immediately responded to the Department of Justice 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,” Sarah Warbelow, legal director for the Human Rights Campaign, said in a statement. “For over a decade, courts have determined that discrimination on the basis of LGBTQ status is unlawful discrimination under federal law. Today’s 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.”

The actions of Attorney General Jeff Sessions, appointed by the President, is the exact opposite of a campaign promise Trump made. “As your President, I will do everything in my power to protect our LGBT citizens against the violence and oppression of the hateful foreign ideology, believe me,” Trump said in a speech at the Republican National Convention when he was still a candidate. After a loud round of applause and chants, he finished the speech with, “And I have to say as a Republican it is so nice to hear you cheering for what I just said — thank you.”


J.L. Gaynor
Out In Jersey magazine contributor J.L. Gaynor spent eight years in the newsrooms of two major New Jersey papers. A Jersey girl through and through: born, raised, and educated in New Jersey. Jen now lives in Maryland and has two dogs she adores, and reads just about anything she can get her hands on.