In an amicus brief filed with the Second Circuit Court of Appeals in July, the U.S. Justice Department argues that “discrimination because of sexual orientation is not discrimination because of sex under Title VII.” Brief for the United States as Amicus Curiae, Zarda v. Altitude Express, Inc., No. 15-3775 (2d Cir. July 26, 2017). The case involves a claim of discrimination by Donald Zarda, a skydiving instructor who was fired after a customer complained about him being gay.

Contradicting the position taken in the case by the U.S. Equal Employment Opportunity Commission (EEOC) that sexual orientation discrimination is barred under Title VII, the Justice Department brief asserts that the EEOC’s argument is “inconsistent with Congress’s clear ratification of the overwhelming judicial consensus that Title VII does not prohibit sexual orientation discrimination.” The Justice Department makes the surprising comment that, although it is the EEOC’s duty to enforce Title VII against private employers under 42 U.S.C. 2000e-5(f)(1), the EEOC is not speaking for the United States in its own amicus brief and “its position about the scope of Title VII is entitled to no deference beyond its power to persuade.”

The Justice Department position contradicts not just the EEOC, but also an April 2017 en banc decision by the Seventh Circuit in Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017), that expressly held Title VII does cover discrimination based on sexual orientation. The Court noted the “confused hodge-podge of cases” interpreting the definition of sex discrimination under Title VII. Most particularly, since the Supreme Court has recognized, in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), that the Constitution protects the right of same-sex couples to marry, to hold that sexual orientation is not protected under Title VII would lead to a “paradoxical legal landscape,” in which “a person can be married on Saturday and then fired on Monday for just that act, clearly a “bizarre result.” Whether the Congress that enacted the Civil Rights Act in 1964, choosing to include sex as a prohibited basis for employment discrimination, understood or predicted the full scope of the term is not determinative, said the 7th Circuit; society, and our interpetation of what discrimination on the basis of sex means, have changed:

[T]his court sits en banc to consider what the correct rule of law is now in light of the Supreme Court’s authoritative interpretations, not what someone thought it meant one, ten, or twenty years ago. The logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.

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