The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination, the brief said. It does not, as has been settled for decades. Any efforts to amend Title VIIs scope should be directed to Congress rather than the courts.
In 2014, Eric Holder, Mr. Obamas attorney general, issued a memo stating that in any litigation that came before it, the Justice Department would take the position that the protections afforded by Title VII would be extended to include a persons gender identity, including transgender status. The future of that memo under Mr. Trump remains unclear.
A lower court on Long Island first considered Mr. Zardas case in 2015 and ruled against him, deciding, despite the E.E.O.C. ruling, that sexual orientation was not included in the civil rights laws prohibition against discrimination based on sex. In April, the Second Circuit in New York upheld that courts decision, even though it noted that there was a longstanding tension in Title VII case law.
Federal appeals courts have issued contradictory rulings on the matter. In 2000, while considering the case of a Long Island postal worker, Dwayne Simonton, who was abused at work for being gay, the Second Circuit ruled that the language of Title VII did not bar discrimination based on sexual orientation. The ruling also noted that Congress has repeatedly declined to include such a provision in the law.
There can be no doubt that the conduct allegedly engaged in by Simontons co-workers is morally reprehensible, the court wrote in 2000. It added, however, that the law is well-settled in this circuit.
Shortly after the new brief was filed, civil rights advocates attacked it. In a statement on Wednesday, Vanita Gupta, who ran the Justice Departments civil-rights division under Mr. Obama, said that the Trump administrations court filing contravenes recent court decisions and guidance issued by the Equal Employment Opportunity Commission.
