President Trump’s DOJ Argues Sexual Orientation Discrimination Not Prohibited By Federal Law

The Trump administration has escalated yet again its assault on the LGBTQ community. In the same week as President Trump’s stunning declaration on Wednesday that transgender individuals would be barred from military service, the United States Department of Justice (DOJ) filed an amicus brief arguing that discrimination on the basis of sexual orientation in the workplace is not prohibited by federal law.

Zarda v. Altitude Express, which is under consideration before the U.S. Second Circuit Court of Appeals, involves the firing of Donald Zarda, who believes that he was fired after his employer discovered he was gay. Mr. Zarda argues that his firing violated Title VII of the 1964 Civil Rights Acts and its provision barring discrimination in the workplace based on “race, color, religion, sex or national origin.” The DOJ is taking the hardline position that discrimination based on sexual orientation is not covered under Title VII and that therefore employers are able under federal law to fire an individual based solely on sexual orientation.

The DOJ took the unusual step of filing a brief in this case despite not being a party to the suit and despite, as numerous news outlets have noted, the department’s historical reluctance to take a position on cases involving private employment.

The Equal Employment Opportunity Commission (EEOC) had filed its own amicus brief in support of Mr. Zarda’s claim in which it reiterated the position it has held for several years that sex discrimination includes discrimination based on sexual orientation. Astonishingly, the Justice Department brief stated that the EEOC, the agency charged with the enforcement of federal anti-discrimination laws in the workplace, was “not speaking for the United States” on this issue and that its position on the scope of the Title VII provision is “entitled to no deference.”

“This characterization of the EEOC, which exists to protect American workers, as not speaking for the government on the issue of sexual orientation discrimination is profoundly disturbing,” said CHRO Executive Director Tanya Hughes.

Deputy Director Cheryl Sharp pointed out that Connecticut law explicitly prohibits discrimination on the basis of sexual orientation, saying that “The developments of this last week, including the minimizing of the EEOC, emphasize the importance of these strong state laws and of a strong CHRO to enforce them. It is increasingly clear that CHRO and other state-level civil rights agencies will need to play a crucial role during Trump’s presidency.”

Hughes added, “While the Trump administration continues to demonstrate its determination to knock down the LGBTQ community, the CHRO will remain committed to protecting all of the state’s citizens.”

The CHRO is one of the oldest state civil rights agencies in the nation, established in 1943. Its continuing mission is to “eliminate discrimination through civil and human rights law enforcement and to establish equal opportunity and justice for all persons within the state through advocacy and education.”

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