DOJ and EEOC File Opposing Amicus Briefs Addressing Whether Sexual Orientation Is a Protected Characteristic Under Title VIIBriefs Filed in Second Circuit’s Full-Panel Review of Zarda v. Altitude Express August 1, 2017
The Second Circuit will now confront the question—again—in Zarda. In June, the EEOC filed an amicus brief, at the Second Circuit’s invitation, arguing that sexual orientation discrimination claims “fall squarely within Title VII’s prohibition against discrimination on the basis of sex.” Among other reasons, the EEOC’s brief stated that “the line [the Second Circuit] drew” in its previous decisions “between sexual orientation discrimination and discrimination based on sex stereotypes is unworkable and leads to absurd results.”
Last week, the DOJ filed its own amicus brief in opposition to the EEOC. The DOJ pointed to precedent “settled for decades” that Title VII does not prohibit sexual orientation discrimination “as a matter of law.” Thus, the question of whether “sexual orientation discrimination should be prohibited by statute, regulations, or employer actions” is one of “policy” and “[a]ny efforts to amend Title VII’s scope should be directed to Congress rather than the courts.”
It is not clear what, if any, influence these conflicting positions may have on the court. Although the EEOC is responsible for enforcing and interpreting Title VII, the DOJ’s brief notes that the EEOC’s position does not represent that of the executive branch under which it serves.
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