Trump Administration Gives Us More Information On Where It Stands on LGBTQ Issues

By Kathleen Jennings (kjj@wimlaw.com)

This week, the Trump Administration gave us more information on where it stands on LGBTQ issues with a tweet and a Brief. The tweet came from the President wherein he stated that he plans to reinstate a ban on transgender individuals from serving “in any capacity” in the US armed forces. Whether this tweet will be formally put into practice remains to be seen.

Of more interest to private employers, however, is the Amicus Brief filed by the U.S. Department of Justice yesterday with the full U.S. Court of Appeals for the 2nd Circuit in New York in Zarda v. Altitude Express, a case filed by a now deceased skydiver who claimed that he was fired from his job because of his sexual orientation. In that Brief, the DOJ argues that discrimination on the basis of sexual orientation is not covered by Title VII of the Civil Rights Act of 1964, as amended.

The DOJ’s current position is contrary to the position of the Obama administration’s Justice Department as well as the Equal Employment Opportunity Commission. In its Brief, the DOJ 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 the Equal Employment Opportunity Commission filed its own brief supporting Mr. Zarda, the DOJ 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 DOJ’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.”

The takeaway: We have the DOJ and the EEOC, both federal agencies, taking opposite positions on the issue of whether discrimination on the basis of sexual orientation is covered by Title VII. This issue is currently being addressed by federal courts in the various Circuits, and may ultimately be resolved by the US Supreme Court. And that ultimate outcome could be determined by the ideological makeup of the Justices. We’ll provide more updates as things develop.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

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