Under the Obama administration the Justice Department and the Equal Employment Opportunity Commission had declared that sexual orientation and “gender orientation” were protected classes under Title VII of the Civil Rights Act. This led to the federal government suing North Carolina over its law requiring people to use a sex appropriate bathroom. Now the Department of Justice has weighed in on a case and is pushing just the opposite opinion.
The department’s amicus brief was filed on Wednesday in the Second Circuit appeals court in the case of Donald Zarda, a sky diving instructor. In 2010, Mr. Zarda was fired by his employer, a Long Island-based company called Altitude Express. Before taking a female client on a tandem dive, Mr. 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 Mr. Zarda. Mr. 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 on Wednesday night. In its court brief, the department noted that every Congress 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.”
What makes this intervention by Justice so interesting, other than the obvious, is that they obviously sought out a case to intervene in:
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 Trump announced on Twitter that transgender people would be banned from serving in the military.
This is a correct and welcome decision. As the Justice brief notes, Congress has revisited Title VII several times over the years and has considered adding protections for homosexuality. Each time it has declined to do so. It is not proper for the Justice Department or the courts to unilaterally expand a law to cover situations that Congress has refused to cover.