DOJ files amicus brief that says Title VII does not protect sexual orientation

The Justice Department filed an amicus brief Wednesday saying that Title VII of the Civil Rights Act of 1964 does not cover employment “discrimination based on sexual orientation.”

The DOJ filed the brief in the case of Donald Zarda, who had filed suit against his former employer Altitude Express in a case that questions whether sexual orientation is included in Title VII’s protections.

Title VII prohibits employment discrimination based on race, color, religion, sex and national origin.

Zarda was a skydiving instructor who said he was fired after disclosing his sexual orientation to a customer. He died in a skydiving accident before the case went to trial, and executors of his estate have continued the lawsuit on his behalf.

“The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination. It does not, as has been settled for decades. Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts,” according to the DOJ’s brief.

It concluded “that Title VII does not prohibit discrimination because of sexual orientation.”

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The American Civil Liberties Union blasted the DOJ’s position as a “gratuitous and extraordinary attack on LGBT people’s civil rights.”

“Fortunately, courts will decide whether the Civil Rights Act protects LGBT people, not an Attorney General and a White House that are hell-bent on playing politics with people’s lives,” said James Esseks, director of the ACLU’s LGBT & HIV Project, in a statement. “We are confident that the courts will side with equality and the people.”

The DOJ under former President Barack Obama had never gone all the way toward unequivocal affirmative support of sexual orientation being covered under Title VII in lawsuits. It simply allowed the Equal Employment Opportunity Commission, the federal agency charged with protecting workers against job discrimination, to make the arguments without incident.

A state worker unfurls a rainbow flag in front of the Washington state Capitol to prepare it to be raised and then lowered to half-staff to mark last weekend's mass shooting at a central Florida nightclub, Wednesday, June 15, 2016, in Olympia, Wash. Gov. Jay Inslee and members from the LGBT community later raised the flag in honor of Gay Pride month, before it was lowered. A gunman wielding an assault-type rifle and a handgun opened fire inside Pulse, a crowded gay nightclub in Orlando, Florida, early Sunday, leaving at least 49 people dead in the worst mass shooting in modern U.S. history. (AP Photo/Elaine Thompson)

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Lower federal courts have been split on this issue for years.

Most recently, in April, the 7th Circuit Court of Appeals in Chicago ruled that the Civil Rights Act prohibits workplace discrimination against LGBT employees. The plaintiff in that case had successfully argued that a school had violated Title VII when it denied her employment.

The ruling conflicted with a different appellate court ruling – in the 11th Circuit Court of Appeals – from March that found that Title VII does not bar claims of discrimination based on sexual orientation.

CNN’s Jessica Jordan and Laura Jarrett contributed to this report.