Both adopted the view that Title VII of the Civil Rights Act of 1964, which bans employment discrimination on the basis of sex, also applies to sexual orientation. The law itself does not say that.
The question has implications well beyond employment law, particularly in education. Title IX of the Education Amendments of 1972, a powerful weapon against discrimination, is generally interpreted in sync with rulings on the employment discrimination law. That’s how the Obama administration justified its controversial efforts to enforce bathroom and locker room equity for transgender students.
The government’s friend-of-court brief stated since Congress has not specifically incorporated sexual orientation in the law, the courts can’t on their own act to include it.
Appeals courts have disagreed on the question, meaning that it will probably have to be settled by the Supreme Court, which has not weighed in squarely on it.
The case is already shaping up as a major test, closely watched by both LGBT activist groups and evangelical religious organizations, which have filed their own friend-of-court briefs.
There’s nothing unusual about the DOJ intervening in civil rights cases as friend-of-the-court, since as the nation’s top law enforcer it has to deal with the outcome. On the other hand, the department has no obligation to get involved. It didn’t have to intervene; it chose to do so.
Title VII makes no mention of sexual orientation and does not define the term “sex.”
But “‘in common ordinary usage,'” the word means only “‘biologically male or female,'” the government said in its brief, quoting prior rulings. So the law can only protect people who have been disfavored because of their sex, not because of their sexual orientation.
If Congress had wanted the law to cover sexual orientation, it has had plenty of opportunity to do so and has chosen not to, the administration argued.
The 2nd Circuit case involves a skydiving instructor who claimed he was fired by a company called Altitude Express based on his sexual orientation.
His problems began in 2010 when Rosanna Orellana and her boyfriend David Kengle purchased tandem skydives, in which the instructor is tied to the back of the client to deploy the parachute.
Donald Zarda was Orellana’s instructor and informed her that he was gay and had recently experienced a breakup. “Zarda often informed female clients of his sexual orientation — especially when they were accompanied by a husband or boyfriend — to mitigate any awkwardness that might arise from the fact that he was strapped so tightly to the woman,” according documents in the case.
Kengle, the boyfriend, complained to Altitude Express and Zarda was fired, as the court said, on the stated grounds that he “failed to provide an enjoyable experience for the customer.”
Zarda died in a skydiving accident before the case went to trial. Two executors of his estate have replaced him as plaintiffs in Zarda v. Altitude Express.
A district court judge held that while Zarda could file the complaint under state law, the Title VII employment discrimination complaint was invalid because the law did not cover sexual orientation.
A panel of the 2nd Circuit agreed with the district judge based on precedent set in an earlier 2nd Circuit case, saying that only the full appeals court, sitting en banc, could reconsider it. That’s what’s happening now and was the occasion for the Justice Department’s amicus brief.
The theory that discrimination on the basis of sex also includes discrimination on the basis of sexual orientation stems from a 1989 Supreme Court decision involving the accounting firm then called Price Waterhouse (now called PwC.)
Ann Hopkins, a woman denied partnership there cited in her discrimination complaint comments by male partners that she was too masculine, that to improve her chances for partnership Hopkins should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled and wear jewelry.”
She could not sustain an argument that she was targeted because she was a woman per se, but rather that it was because she did not conform to the partnership’s stereotypes about women.
Her complaint produced a ruling holding that such stereotyping was a form of sex discrimination in employment.
Lawyers for LGBT people took it from there, arguing that discrimination on the basis of sexual orientation was, at bottom, a form of stereotyping.
It reflected judgments about how men and women should dress and behave, with whom they should have sex, whether they should or shouldn’t wear makeup, and so forth.
The EEOC and several lower courts accepted that interpretation while other courts, including the 2nd Circuit, have rejected it.
In its brief, the Justice Department dismissed the theory. Sex discrimination occurs only when someone would have been hired, for example, “but for” their sex.