In an amicus brief filed by the justice department, the question is raise to whether Title VII of the Civil Rights Act of 1964 covers sexual orientation.
“The question presented is not whether, as a matter of policy, sexual orientation discrimination should be prohibited by statute, regulations, or employer action,” The document reads. “The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination”
The justice department argues that although “sex” was not fully defined when added to the act, cases over the years have proved that “sex” discrimination pertains to discrimination against an individual based solely on their sex such as considering gender stereotypes when hiring an individual versus discrimination because of their sexual orientation.
“In 1991, Congress further amended Title VII,” The document reads. “As detailed below, by that time, several courts of appeals had held that Title VII does not prohibit sexual orientation discrimination, and no court of appeals had held otherwise. 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 case highlighted in the brief is that of Donald Zarda, a skydiving instructor who claimed that a former employer, Altitude Express, had violated Title VII by firing him for being gay in a 2010 lawsuit.
Zarda’s claim was first rejected by The US District Court for the Eastern District of New York who ruled that Title VII didn’t include sexual orientation protections.
Although Zarda died in 2014 in a base jumping accident, representatives of his estate have continued his lawsuit.