Jus­tice depart­ment says rights law doesn’t pro­tect gays

Miami Herald - - FRONT PAGE -

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 Pres­i­dent Barack Obama.

The depart­ment’s move to in­sert it­self into the New York case was an un­com­mon ex­am­ple of top of­fi­cials in Wash­ing­ton opin­ing di­rectly in the courts on what is an im­por­tant but es­sen­tially pri­vate dis­pute be­tween a worker and his boss over gay rights is­sues. Civil rights ad­vo­cates im­me­di­ately crit­i­cized the fil­ing not only for the ar­gu­ments it ad­vanced, but also for hav­ing been made on the same day that Pres­i­dent Don­ald Trump an­nounced on Twit­ter that trans­gen­der peo­ple would be banned from serv­ing in the mil­i­tary.

The depart­ment’s ami­cus brief was filed Wed­nes­day in the 2nd U.S. Cir­cuit Court of Ap­peals in the case of 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 sub­se­quently fired Zarda. Zarda then sued Al­ti­tude Ex­press, claim­ing it had vi­o­lated Ti­tle VII of the 1964 Civil Rights Act, which bars dis­crim­i­na­tion in the work­place based on “race, color, re­li­gion, sex or na­tional ori­gin.”

Un­der At­tor­ney Gen­eral Jeff Ses­sions, the Jus­tice Depart­ment has now stepped into the fray, as Buz­zFeed re­ported Wed­nes­day night. In its court brief, the depart­ment noted that ev­ery Con- gress since 1974 has de­clined to add a sex­ual-ori­en­ta­tion pro­vi­sion to Ti­tle VII, de­spite what it called “no­table changes in so­ci­etal and cul­tural at­ti­tudes.” The brief also claimed that the fed­eral govern­ment, as the largest em­ployer in the coun­try, has a “sub­stan­tial and unique in­ter­est” in the proper in­ter­pre­ta­tion of Ti­tle VII.

“The sole ques­tion here is whether, as a mat­ter of law, Ti­tle VII reaches sex­ual ori­en­ta­tion dis­crim­i­na­tion,” the brief said. “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.”

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