DOJ and EEOC File Opposing Amicus Briefs Addressing Whether Sexual Orientation Is a Protected Characteristic Under Title VII

Briefs Filed in Second Circuit’s Full-Panel Review of Zarda v. Altitude Express August 1, 2017
As previously discussed in this blog, the Second Circuit has agreed to review en banc its April 18 decision in Zarda v. Altitude Express, 855 F.3d 76 (2d Cir. 2017), in which it held that Title VII’s prohibition on sex discrimination did not encompass discrimination based on sexual orientation.  There is a circuit split on this question — the Seventh Circuit, sitting en banc, recently overturned its own precedent and became the first appellate court to hold that Title VII covers claims of sexual orientation discrimination.  See Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 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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