DOJ – Title VII Does Not Include LGBT

Liberty Counsel

The U.S. Justice Department (DOJ) filed an amicus brief in Zarda v. Altitude Express yesterday at the U.S. Federal Court of Appeals, which contends that Title VII of the Civil Rights Act of 1964 bans gender discrimination, but does not include sexual orientation or gender identity, in the workplace.

The Equal Employment Opportunity Commission (EEOC), a largely autonomous federal agency that handles civil rights disputes in the workplace, supported Zarda last month in its own court filing. The EEOC has previously argued in federal court that Title VII’s ban on sex discrimination also included gender identity — thereby barring discrimination against so-called LGBT employees.

The DOJ, which doesn’t typically weigh in on private employment lawsuits, argues in the amicus brief that “the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade. The theories advanced by the EEOC and the Seventh Circuit lack merit and these theories are inconsistent with Congress’s clear ratification of the overwhelming judicial consensus that Title VII does not prohibit sexual orientation discrimination.” The DOJ also contends that Title VII only applies if men and women are treated unequally.