Department of Justice Says It’s Not Illegal to Discriminate Against ‘Homosexuals’ in the Workplace

In a disheartening break from progress in workplace policies, the Department of Justice filed a brief on Wednesday claiming the Civil Rights Act of 1964 does not protect “homosexual” workers from discrimination. The brief says that discrimination based on sexual orientation is not sex discrimination—directly contradicting Title VII of the Civil Rights Act, which “makes it unlawful to discriminate against someone on the basis of race, color, national origin, sex (including pregnancy and gender identity) or religion.”

The brief was filed in response to the lawsuit Zarda v. Altitude Express, in which a male skydiving instructor claimed he was fired by his employer because he was gay. After the case was initially dismissed by a district judge, it was appealed and taken to federal court this year.

“The essential element of sex discrimination under Title VII is that employees of one sex must be treated worse than similarly situated employees of the other sex, and sexual orientation discrimination simply does not have that effect,” the DOJ brief states.

The ACLU released the following statement:

The Supreme Court has explained that sex discrimination occurs whenever an employer takes an employee’s sex into account when making an adverse employment decision. Courts have applied this principle to countless forms of employer bias, from cases involving a ban on hiring mothers of preschool-aged children to bias against Asian-American women to the failure to promote a Big Eight accounting firm partnership candidate because she was considered to be ‘macho.’ Time and again, courts have refused to allow generalizations about men and women – or about certain types of men and women – to play any role in employment decisions.

This does not seem to be what the DOJ is arguing. Rather, it claims that it is acceptable to discriminate against LGBT people in the workplace, based on statements in two main bullet points:

● TITLE VII’S BAR AGAINST DISCRIMINATION BECAUSE OF SEX IS NOT VIOLATED UNLESS MEN AND WOMEN ARE TREATED UNEQUALLY ● DISCRIMINATION BECAUSE OF SEXUAL ORIENTATION IS NOT DISCRIMINATION BECAUSE OF SEX UNDER TITLE VII

While Title VII seems straightforward in protecting workers from discrimination based on sex, including pregnancy and gender identity, its lack of specific language in regard to sexual orientation has allowed for workplace discrimination against LGBT people. However, the Equal Employment Opportunity Commission, a federal agency that handles civil rights disputes, has insisted for years that anti-gay discrimination is based on sex stereotyping and amounts to discrimination on the basis of sex.

The DOJ’s statements will not yet have concrete effects on actual workplace policy because the brief was in response to a court argument. But the comments set a dangerous precedent, given that the DOJ was not asked to participate or comment on the case—in addition to the fact that the department released the statement the same day President Trump announced a ban on transgender people performing military service.