Justice Department: LGBT Workplace Discrimination Is Allowed Under Civil Rights Law

The prohibition on sex discrimination doesn’t cover sexual orientation discrimination, the department argues.

Bastiaan Slabbers/NurPhoto via ZUMA Press

The Justice Department announced on Wednesday that it does not consider workplace discrimination against LGBT individuals to be prohibited under federal civil rights law. The move, which came the same day President Donald Trump announced that he would ban transgender people from serving in the military, puts the administration at odds with another federal agency, the Equal Employment Opportunity Commission, and breaks with the position of the Obama administration.

The department declared its position in a brief submitted to a federal appeals court in a discrimination case on Wednesday evening.  

The case began in 2010, when Donald Zarda, a skydiving instructor who is now deceased, sued his employer for firing him because he was gay. The legal issue now before the appeals court is whether the 1964 Civil Rights Act’s prohibition on employment discrimination on the basis of sex also protects people from discrimination based on their sexual orientation. 

The US government is not a party to the case, but under Attorney General Jeff Sessions, the Justice Department weighed in anyway to share with the court where the government stands on LGBT discrimination. The brief also notes that that the government has an interest in the outcome because the “United States is also subject to Title VII [the employment discrimination provision of the Civil Rights Act] in its capacity as the Nation’s largest employer.” 

The Equal Employment Opportunity Commission, which has argued for years in court filings that sexual orientation discrimination is sex discrimination, weighed in on this case on Zarda’s behalf.

Courts around the country are grappling with questions surrounding LGBT discrimination, including employment discrimination. In April, another federal appeals court issued a landmark 8-3 ruling holding that sexual orientation discrimination is a form of sex discrimination. That decision, in which five Republican appointees joined all three Democratic ones in the majority, argued that a lesbian facing employment discrimination had endured sex discrimination. The logic was simple: If she had been a man who dated women, she would not have faced the same discrimination. Therefore, the discrimination was because she was a woman. The court found that “it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.” 

But in the current case, the Justice Department takes a different view. It argues that sex discrimination applies only when “an employer has treated ‘similarly situated employees’ of different sexes unequally.” But the government’s main argument is that an expansion of the Civil Rights Act to include sexual orientation should be left to Congress, not the courts. Congress, the department’s brief argues, is aware that until the April ruling, courts have not found that the civil rights law bans sexual orientation discrimination, but it never acted to change that.

Civil rights attorneys are unimpressed with the government’s arguments. Several said on Twitter that the brief did not demonstrate that Congress acted with any intent on the question of sexual orientation discrimination. “[T]his is also very poor and forced statutory interpretation,” Sasha Samberg-Champi‏, who worked in the Civil Rights Division of the Department of Justice under President Barack Obama, tweeted Wednesday evening. “This may be technical, but let me clear: this isn’t just bad policy, it’s objectively unconvincing. Too bad DOJ required to stoop to this.”