10:28, July 27 52 0 abajournal.com

2017-07-27 10:28:05
Job bias law doesn’t cover sexual orientation, Justice Department tells appeals court

The department explained its position in an amicus brief (PDF) filed with the en banc 2nd U.S. Circuit Court of Appeals, based in New York, report the Washington Post and the National Law Journal (sub. req.). The position is at odds with that of the U.S. Equal Employment Opportunity Commission and the Obama administration’s Justice Department.

Title VII bars employment discrimination on the basis of sex. Federal appeals courts have differed on whether the law protects workers on the basis of sexual orientation.

The Justice Department brief says the law does not define “sex,” but its common ordinary usage is that it means biologically male or female. That meaning suggests the phrase only protects people who are disfavored because of their sex, the brief argues.

The brief also says Congress could include sexual orientation protections in the law if it wants to do so.

The 2nd Circuit case was filed on behalf of Donald Zarda, a skydiving instructor who was fired after a customer complained about him being gay. Zarda later died in a skydiving accident, but his estate’s executors are continuing the litigation.

The brief was filed the same day President Donald Trump announced on Twitter that “the United States government will not accept or allow … Transgender individuals to serve in any capacity in the U.S. Military.”

The case is Zarda v. Altitude Express.