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DOJ says no employment protection based on sexual orientation

While the state of California offers protection to employees who face discrimination on the basis of sexual orientation, this protection may be eroding for employees nationwide who do not live in states with the same protection. On July 26, the Department of Justice filed an amicus brief in a case that a former skydiving instructor brought against his employer alleging he had been fired because of his sexual orientation.

The man died in a skydiving accident before the trial, and his executors have replaced him in the lawsuit. The District Court said that discrimination based on sexual orientation was not a form of sex discrimination, and the executors have appealed that decisions

In the brief the DOJ filed with the 2nd Circuit Court of Appeals in New York, the department argued that the court should reaffirm precedent. Furthermore, the brief stated that Congress had made it clear that it did not consider sexual orientation as being included in Title VII’s prohibition of sex discrimination. A spokesperson for the department said it was the job of Congress and not the courts to expand the interpretation of the law and that 10 appeals courts had agreed with the narrower interpretation. However, LGBT groups said they viewed the brief as an attack on LGBT rights.

California has expanded its definition of protected classes well beyond the federal categories, so people who believe they are facing workplace discrimination on the basis of protected characteristics might want to talk to an attorney about those rights. Even if the person hopes to resolve the situation in the workplace and not the court system, legal advice may be helpful prior to a meeting with a supervisor or with human resources. If the employer retaliates against the employee for reporting the discrimination or does not act to protect the worker, a lawsuit may be necessary.