Our April 5, 2017 post highlighted a decision of the Seventh Circuit Court of Appeals finding that Title VII protections against discrimination on the basis of gender extend to sexual orientation.  That court referenced US Supreme Court decisions such as the 2015 same sex marriage case, Obergefell v. Hodges, in concluding that “[t]he logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.”

Yesterday the Department of Justice filed an amicus brief taking the opposite position in a  matter pending in an appeals court in New York.  The case involves a sky diving instructor who was fired by his employer after disclosing to a customer that he was gay.  The suit is a private action brought by the employee against the company.  The Justice Department’s involvement in a case of this nature to which it is not a party is an unusual move which appears to signal the current administration’s intent to continue to roll back gains achieved in the last eight years in enforcing the civil rights of the LGBT community.  Even more unusual is the fact that another federal agency, the Equal Employment Opportunity Commission (“EEOC”) whose responsibility it is to enforce the laws protecting employees from discrimination, had already filed its own brief supporting the plaintiff, Donald Zarda.   In its brief the Justice Department claimed that the EEOC was “not speaking for the United States.”

The brief was filed on the day on which President Trump announced his intention via Twitter to ban transgender soldiers from serving in the military.

The fact remains that both the EEOC and state enforcement agencies such as the Massachusetts Commission against Discrimination and the New Hampshire Commission for Human Rights have long held the position that Title VII and state anti-discrimination laws protect gay and transgender employees.  Similarly, every New England state has banned, via statute, discrimination on the basis of sexual orientation, and all but one prohibit discrimination on the basis of gender expression or identity.

As with most cases in this arena, employers should adapt a “wait and see” attitude.  The Justice Department’s position will have no practical impact in New England other than the likelihood that matters will more likely be brought in state court under state laws when sexual orientation and gender identity are at issue.