Trump’s DOJ v. TITLE VII and Sexual Orientation
WASHINGTON, D.C. – The Trump administration has taken a strong stance with regard to Title VII of the Civil Rights Act of 1964 and whether it protects sexual orientation discrimination. In the eyes of the current administration, it does not. In an amicus brief – an unrequested legal brief filed in the appellate court by a non-party – on Zarda v. Altitude Express, Inc., a Title VII case out of the Eastern District of New York,   Chad Readler and Tom Wheeler, the Acting Assistant Attorneys General, made an official statement that Trump’s Department of Justice does not believe that Title VII covers sexual orientation, despite the recent Court Decisions out of the 7th Federal Judicial District in which famed Jurists, The Honorable Richard Posner, made clear that Title VII does prohibit private employers from discriminating against an individual on the basis of their sexual orientation.

In their unrequested brief, Trump’s DOJ starts off hot, stating that “sex” is not defined by Title VII, and adopting Judge Sykes’s meaning in Hively v. Ivey Tech Community College of Indiana in which Judge Sykes defined “sex” as biologically male or female. They go on to make clear that under Title VII, “discrimination” requires a showing that an employer has treated “similarly situated employees” of different sexes unequally. They claim the central question to the inquiry is whether an employer has treated “some people less favorably than others because of their sex.” Trump’s DOJ further attacked leading jurisprudence with regard to discrimination based on sexual orientation.

Trump’s DOJ also disagreed with Price Waterhouse v. Hopkins, in which the Court ruled that Title VII prohibited an employer from discriminating against an employee because that employee failed to conform to traditional gender roles. Trump’s DOJ insists that Title VII does not forbid employment practices that take in account the sex of employees. As an example, Trump’s DOJ reminds the court that employers maintaining gender specific-bathrooms is legal under Title VII.

While the Trump DOJ held fast to classic right-wing stances backed by legal citation, they failed to recognize that the case they relied on as their legal footing would have been ruled against them. In Hively, Judge Wood penned the opinion of the Court. The first paragraph of Judge Wood’s opinion reads:
“For many years’ courts of appeals of this country understood prohibition against sex discrimination to exclude discrimination on the basis of a person’s sexual orientation. The Supreme Court, however, has never spoken to that question…We have done so, and we conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination.”

The Seventh Circuit’s opinion is not dispositive of the issue, it is among the first Court opinions to endorse Title VII’s prohibition sexual orientation discrimination, a position that the Equal Employment Opportunities Commission (“EEOC”) has routinely maintained. More importantly, Judge Wood’s opinion shows that the judges around the country are ready to usher in a new era of tolerance.

Trump’s DOJ’s brief runs directly contrary to the President’s very public stance on LGBT rights. However, in the Trump administration, the old quarterback adage of “have a short memory” is more of a policy position, as this administration routinely forgets its previous stances on important issues and adopts any position that seems to be politically expedient and pleasing to the far right-wing members of the GOP who have hijacked the party of Reagan.

The skilled New York City sexual harassment attorneys at the Derek Smith Law Group, PLLC, have years of experience litigating claims of sexual orientation discrimination. If you feel you have been discriminated against on the basis of your sexual orientation, please give our talented attorneys a call at 800-807-2209 for a free consultation.

About Derek Smith

Attorney Derek T. Smith is an experienced sexual harassment & discrimination law litigator who has particular experience in the areas of workplace discrimination, sexual harassment, wrongful termination, civil rights litigation, employment law and civil litigation.

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