U.S. Justice Department Rules Discrimination Against LGBT Employees Is Legal under Civil Rights Act

The Civil Rights Act of 1964 was intended to extend protections for minorities in the workplace and public accommodations. One of the biggest issues surrounding this historic piece of legislation, however, is the interpretation of the term sex under the Civil Rights Act. Sex can be narrowly interpreted as gender only or in a broader sense include sexual orientation and sexual identity. On July 26, 2017, the Justice Department opted for the first interpretation and announced that it does not regard discrimination against LGBT employees as a violation of the provisions of the Civil Rights Act.

An Ongoing Discrimination Case

A lawsuit filed in 2010 by Donald Zarda asserts that his employer fired him for being gay. The U.S. government is not a part of the litigation; however, the Justice Department filed the amicus brief to bolster the current administration’s position on the matter “in its capacity as the Nation’s largest employer.”

Taking a Broader View

If the Appeals Court did rule in favor of Zarda’s position, it would continue the move toward a wider view of sex discrimination. A recent Federal Appeals Court decision stated that “it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex,” noting that a lesbian would not face discrimination if she were a man dating women.

Pushing for a Narrow Interpretation

The Trump administration, however, has made its position on sex discrimination clear with President Trump’s recent announcement that he intends to ban transgender individuals from service with the U.S. military. If a broader construction of the sex discrimination provisions of the Civil Rights Act became applicable, this prohibition would constitute illegal discrimination on the part of the government itself. In this context, the federal government’s interest in the Zarda discrimination case becomes apparent.

A Step Backward

The announcement by the Justice Department puts it into direct conflict with the precedents set during the Obama presidency and with the current policies of the Equal Employment Opportunity Commission. In recent years, court rulings and public opinion have been trending toward a broader interpretation of sex discrimination to include discriminatory acts based on gender identity and sexual orientation.
Vermont, Connecticut, and New York Join Major Corporations to Support Equal Employment Opportunities for LGBT Workers

In a sweeping gesture of support for LGBT rights in the U.S., the leading legal authorities of New York, Vermont, and Connecticut have joined with companies like Microsoft and Viacom asking the Federal Appeals Court in New York to explicitly include LGBT status as a protected class under Title VII of the Civil Rights Act. The attorneys general of these three states have offered their own opinions in support of a broader definition of sex discrimination as defined in the legislation and are hoping for a positive outcome from the Appeals Court later this year.

Widespread Support Among Major Employers

The expansion of Title VII protections to include LGBT employees has received support from numerous companies in the New York area, and across the U.S. Google, Levi Strauss, Microsoft, and CBS are among the most famous names on the list of businesses that have signed on to this cause. Many of these companies pointed to the essential roles of diversity and inclusiveness in creating a productive and profitable work environment.

Support from the EEOC

The Equal Employment Opportunity Commission (EEOC) has filed a brief in support of sexual orientation as a protected class. “…an employer cannot discriminate against an employee based on that employee’s sexual orientation without taking the employee’s sex into account – precisely what Title VII forbids.” The EEOC has long held that discrimination motivated by sexual orientation animus is prohibited and has acted to protect the rights of LGBT individuals against unfair treatment by employers.

Potential for Supreme Court Involvement

The case in question is Zarda v. Altitude Express, concerns the firing of Donald Zarda because of his sexual orientation. Oral arguments before the U.S. Court of Appeals for the Second Circuit commence on September 26, 2017. The case could eventually reach the U.S. Supreme Court for a final determination of the protections afforded to LGBT people in the workplace.

For those who have experienced discrimination in the workplace, finding the right approach can have a significant impact on the outcomes both in and out of the courtroom setting. The employment law experts at Risman & Risman can provide you with the right solutions to resolve your case and to ensure that you receive the best representation possible. Give us a call at 212-233-6400 to schedule a free consultation with our team of experienced and knowledgeable attorneys. At Risman & Risman, we work for you.

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