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DOJ: Title VII does not protect against discrimination based on sexual orientation

[JURIST] The US Department of Justice (DOJ) [official website] filed an amicus curiae brief [PDF] on Wednesday urging the US Court of Appeals for the Second Circuit [official website] to dismiss a lawsuit brought by a man who claims he was fired for his sexual orientation. Donald Zarda alleges that his employment as a skydiving instructor with Altitude Express Inc was terminated [Reuters report] after he told a customer that he was gay. The DOJ argues that Title VII of the Civil Rights Act of 1964 [materials], which bans sexual discrimination in the workplace, does not extend to protect against discrimination of sexual orientation where there is "no showing that an employer has treated 'similarly situated employees' of different sexes unequally." The brief contends that discrimination based on sexual orientation does not "involve the disparate treatment of men and women" because "it causes differential treatment of gay and straight employees for men and women alike." Until the US Court of Appeals for the Seventh Circuit's recent landmark decision in Hively v. Ivy Tech Community College [JURIST report], there was a "settled precedent holding" that discrimination based on sexual orientation was not prohibited under Title VII. Additionally, the brief continues,

Against the backdrop of that precedent, Congress neither added sexual orientation as a protected trait nor defined discrimination on the basis of sex to include sexual orientation discrimination—notwithstanding that Congress amended the provisions concerning sex discrimination in other respects and overruled numerous other judicial precedents with which it disagreed. In fact, every Congress from 1974 to the present has declined to enact proposed legislation that would prohibit discrimination in employment based on sexual orientation.
The American Civil Liberties Union (ACLU) [advocacy website] called [press release] the move "disgraceful" and vowed "to continue this fight to make clear that discrimination against LGBT people is just another form of sex discrimination that is prohibited under federal civil rights laws."

LGBT protections are still disputed and many rights groups have raised concerns about the future of LGBT rights within the US since the November elections. The Supreme Court of Texas held [JURIST report] earlier this month that the Houston's benefits policy need not extend to same-sex couples In June the US Court of Appeals for the Fifth Circuit lifted an injunction [JURIST report] on a Mississippi law that critics say allows individuals, including government employees, to discriminate against gay, lesbian, bisexual and transgender people for religious reasons. Also in June the US Court of Appeals for the Fourth Circuit upheld [JURIST report] North Carolina's Senate Bill 2, which allows magistrates to refuse to perform same-sex marriages if doing so would conflict with their religious beliefs. In May the US Supreme Court declined to hear [JURIST report] an appeal challenging California's 2012 ban on "gay conversion" therapy. In April the US Department of Justice dropped [JURIST report] a federal lawsuit against the state of North Carolina over a bill requiring transgender people to use the public bathroom associated with their birth gender. In February the Arkansas Supreme Court ruled [JURIST report] that a Fayetteville city ordinance broadening nondiscrimination laws to include sexual orientation or gender identity was invalid under a state statute that prohibited cities from adopting or enforcing ordinances prohibiting discrimination beyond what is barred by state law.

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