DOJ Rejects EEOC’s Expansion of Title VII to Include Sexual Orientation

In a closely-watched case pending before the U.S. Court of Appeals for the 2^nd Circuit, Zarda v. Altitude Express dba Skydive Long Island, the Department of Justice has taken the position that Title VII’s prohibition on sex discrimination does not include sexual orientation.

In this case, a panel of the 2^nd Circuit had previously held that Title VII does not cover sexual orientation; however, the full (en banc) 2^nd Circuit has now agreed to decide the matter. The EEOC has consistently asserted, including in this case, that sexual orientation discrimination is sex discrimination under Title VII, and the federal circuit courts that have addressed this issue thus far are split, as we discussed in our April 2017 E-Update and March 2017 E-Update.

The DOJ filed a brief in this case, in which it rejects the EEOC’s position, stating 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.” Of interest, this is the second time in weeks that the Trump DOJ has expressly rejected a position asserted by a sister agency, whom the DOJ would normally represent in court. As discussed in our June 2017 E-Update, the DOJ has now asserted to the Supreme Court that waivers of the right to bring class or collective actions over employment-related disputes cannot be precluded by the National Labor Relations Act, and should be enforced under the Federal Arbitration Act – contrary to its prior position under the Obama administration.