The department’s decision to file a brief in the case was a rare example of top officials in Washington weighing in on gay rights in what is an important but essentially private dispute between a worker and his or her boss. Civil rights advocates criticized the filing not only for its arguments, but also for having been made on the same day that U.S. President Donald Trump announced on Twitter that transgender people would be banned from serving in the military.
The department’s amicus brief was filed Tuesday in the case of Donald Zarda, a sky diving instructor who in 2010 was fired by his employer, a Long Island, New York-based company called Altitude Express. Before taking a female client on a tandem dive, Zarda told the woman he was gay in order 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 Zarda. Zarda then filed suit against Altitude Express, claiming it had violated Title VII of the 1964 Civil Rights Act, which bars discrimination in the workplace based on “race, colour, religion, sex or national origin.”
Under Attorney General Jeff Sessions, the Justice Department has now stepped into fray, as reported by BuzzFeed on Wednesday night. In its recent 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. Although another federal agency, the Equal Employment Opportunity Commission, filed its own brief supporting Zarda, the Justice Department brief claimed that the EEOC was “not speaking for the United States.”
“The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination,” the department’s 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.”