Tuesday, August 1, 2017

Discrimination vs LGBTQetc not barred by Civil Rights Act, US DoJ says

Walt is posting this to give you the link to the 36-page amicus (= friend of the court) brief filed on 26 July by the United States Department of Justice (DoJ) in Zarda and Moore v. Altitude Express Inc. and Maynard, a case being argued in the United States Court of Appeals (2nd Circuit).

The case is about Title VII of the Civil Rights Act of 1964. The issue to be decided is whether the statute's prohibitions on employment discrimination because of "sex" (= gender or "gender orientation") include discrimination because of sexual orientation. The DoJ contends, in its brief, that such discrimination is not -- repeat, not -- prohibited.

The heads of argument in the DoJ brief sum up the government's position:
I. Title VII'S bar against discrimination because of sex is not violated unless men and women are treated unequally
II. Discrimination because of sexual orientation is not discrimination because of sex under Title VII
A. Until recently, the Courts Of Appeals and the Equal Employment Opportunity Commission (EEOC) had uniformly held that sexual orientation discrimination is not prohibited sex discrimination under Title VII
B. Congress has repeatedly ratified the settled understanding that Title VII does not bar sexual orientation discrimination.
III. The theories advanced by the EEOC and the Seventh Circuit lack merit, let alone sufficient merite to overcome Congress's ratification of the contrary interpretation
A. "But for" the employee's sex
B. Per se sex stereotyping
C. Associational discrimination

And here is the DoJ's conclusion: "This Court should reaffirm its precedent holding that Title VII does not prohibit discrimination because of sexual orientation." Click on the link above to read the whole brief. Walt would be pleased if an American (or other) lawyer would let us know when and how the court rules.

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