Justice Dept. says jobs rights law doesn’t cover gays

Filing is counter to EEOC’s policy under Barack Obama.

The Department of Justice has filed court papers arguing that a major federal civil rights law does not protect employees from discrimination based on sexual orientation, taking a stand against a decision reached under former President Barack Obama.

“The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination,” the Justice Department said in its filing citing the 1964 Civil Rights Act, which bars discrimination in the workplace based on “race, color, religion, sex or national origin.” “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’s amicus brief was filed Wednesday, the same day that President Donald Trump announced on Twitter that transgender people would be banned from serving in the military, raising concerns among civil rights advocates that the Trump administration was trying to undermine lesbian, gay bisexual and transgender rights won under previous administrations.

The filing came in the 2nd U.S. Circuit Court of Appeals in a discrimination case involving Donald Zarda, a sky diving instructor. In 2010, Zarda was fired by his employer, a Long Island, N.Y.based company called Altitude Express. Before taking a female client on a tandem dive, Zarda told the woman he was gay to assuage any awkwardness that might arise from the fact that he would be tightly strapped to her during the jump. The woman’s husband complained to the company, which fired Zarda. Zarda then sued Altitude Express, claiming it had violated Title VII.

In its court brief, the Justice Department noted that every Congress since 1974 has declined to add a sexual-orientation provision to Title VII. The brief also said the federal government, as the largest employer in the country, has a “substantial and unique interest” in the interpretation of Title VII.

In 2015, the Equal Employment Opportunity Commission, under Obama, issued a very different ruling, deciding that discrimination on the basis of sexual orientation was illegal. The ruling did not bind the federal courts, although courts often defer to federal agencies when they interpret laws that come under their jurisdiction.

The American Civil Liberties Union called the brief a “gratuitous and extraordinary attack on LGBT people’s civil rights.” In a statement, James Esseks, the director of the organization’s LGBT and HIV Project, said Attorney General Jeff Sessions and the Trump administration “are actively working to expose people to discrimination.”

Devin O’Malley, a Justice Department spokesman, said the brief was consistent with the Justice Department’s long-standing position and added that the filing “reaffirms the department’s fundamental belief that the courts cannot expand the law beyond what Congress has provided.”