Justice Department Says Rights Law Doesn’t Apply to Gay Workers

MANHATTAN (CN) — Hours after the White House pushed to ban transgender troops, the U.S. Department of Justice quietly filed a brief in a New York-based appeals court opposing protecting workers from discrimination based on sexual orientation.

Departing sharply not only from the Obama administration’s position, but also the views of the Equal Employment Opportunity Commission, the Justice Department’s legal brief filed Tuesday night argues that landmark civil rights legislation does not protect lesbian, gay or bisexual workers.

The filing comes only hours after President Donald Trump said he would ban transgender military service in a flurry of early morning tweets.

“The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination,” Justice Department attorney Charles Scarborough wrote in the brief.

“It does not, as has been settled for decades,” the 23-page brief continues. “Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts.”

The Justice Department filed the brief in support of the Long Island-based sky diving company Altitude Express, which fired its instructor Donald Zarda in 2010.

Zarda said he told a female customer that he was gay to avoid any discomfort during a tandem jump, before her husband lodged a complaint with the company that led to his dismissal.

The instructor then sued Altitude Express — which does business under the name Skydive Long Island — in the Eastern District of New York under Title VII of the 1964 Civil Rights Act, which prohibits workplace discrimination based on “race, color, religion, sex or national origin.”

Federal appeals courts have been split over whether the ban on sex discrimination also bars anti-gay discrimination.

The Atlanta-based 11th Circuit answered no in March, and the Chicago-based Seventh Circuit found that it did in April.

Zarda’s appeal is pending before the New York-based Second Circuit, which recently expressed sympathy with expanding Title VII to include sexual orientation earlier this year.

The Justice Department put its finger on the scale against expanding rights weeks after Attorney General Jeff Sessions spoke at a closed-door event before Alliance Defending Freedom, a group designated an “anti-LGBT hate group” by the Southern Poverty Law Center.

Under former President Barack Obama, the Justice Department’s Civil Rights Division regularly lent support to lesbian, gay, bisexual and transgender people in court battles, notably in opposing state-passed “bathroom bills” forcing people to use restrooms listed on their birth certificates. Trump’s Justice Department has abandoned its defense of the Obama’s administration’s transgender policy.

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