DOJ files brief in Title VII sexual orientation case

July 27, 2017

The U.S. Department of Justice is adding its voice to the latest Title VII dispute, echoing 7th Circuit Court of Appeals Judge Diane Sykes that Congress, not the courts, should determine whether civil rights’ prohibitions against discrimination extend to sexual orientation.

In its brief filed Wednesday, the Justice Department staked out its position on Title VII in Zarda, et al. v. Altitude Express, Inc., et al., 15-3775, a discrimination case pending in the 2nd Circuit Court of Appeals. A split 2nd Circuit panel ruled in Zarda earlier this year that sexual orientation protections are not included in Title VII but the court has since granted a rehearing en banc with oral arguments scheduled for Sept. 26.

The Justice Department is pushing the 2nd Circuit to stick with precedent from the federal courts as well as Capitol Hill and find Title VII does not include protections for sexual orientation. It argues that Congress in its actions and inactions has made clear the scope of the provision and that any extension should be decided by the elected representatives.

“To be sure, there have since been notable changes in societal and cultural attitudes about such discrimination, but Congress has consistently declined to amend Title VII in light of those changes, despite having been repeatedly presented with opportunities to do so,” the Department of Justice stated in its brief. “And more fundamentally, even unforeseen circumstances do not present courts with a license to ‘rewrite a constitutionally valid statutory test under the banner of speculation about what Congress might have done’ to implement a clear statute’s policy objectives.”

The position is counter to recent rulings by the Equal Employment Opportunity Commission and the 7th Circuit Court of Appeals. In the 2015 case, Baldwin v. Foxx, the commission found that sexual orientation discrimination is sex discrimination which is prohibited by Title VII. Likewise, in the landmark 2017 Hively v. Ivy Tech, the full 7th Circuit overturned its own precedent and held that Title VII protections against sex discrimination include bias based on sexual orientation.

Initially in Hively, the 7th Circuit panel affirmed its previous decisions that Title VII does not include sexual orientation. But when the full appellate court in Chicago sat for the rehearing, the majority took the opposite view.

The Department of Justice did not file an amicus brief in the Hively rehearing. Also, it did not file a brief in Evans v. Georgia Regional Hospital, et al., 15-15234, when the plaintiff, Jameka Evans, petitioned for a rehearing on her claim that she was fired because of her sexual orientation in violation of Title VII.  The 11th Circuit held Title VII does not include such protections and denied a rehearing.

Sykes dissented from the Hively ruling, maintaining the court is “not authorized to infuse the text (of the statute) with a new or unconventional meaning or to update it to respond to changed social, economic, or political conditions.”

The Department of Justice echoes Sykes’ reasoning. In its Zarda brief, the federal agency argues that Congress should determine Title VII protections and that despite amending the Civil Rights Act of 1964 numerous times, it has not written sexual orientation into the language.

“Whereas Congress added new provisions that used the term ‘sex’ in the course of setting forth methods and burdens of proof for sex discrimination claims, it neither included sexual orientation within the definition of sex nor added it as an independently protected trait,” the Justice Department stated in its brief.


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