Whoa.

The U.S. Department of Justice and the Equal Employment Opportunity Commission are at cross purposes in the “gay skydiver” case.

Are they ever.

Do you remember Zarda v. Altitude Express? The U.S. Court of Appeals for the Second Circuit recently signaled that it might overrule its precedent holding that Title VII’s ban on sex discrimination does not include sexual orientation discrimination.

In late June, the EEOC filed a brief in support of the estate of the (now deceased) skydiver, whose lawsuit has been unsuccessful so far. The EEOC argued that Title VII does indeed prohibit discrimination based on sexual orientation.

But then yesterday, the DOJ filed a brief in support of the employer, flat-out saying that the EEOC is wrong and that its authority is limited:

Although the [EEOC] enforces Title VII against private employers and it has filed an amicus brief in support of the employee here, the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.

(Emphasis added and legal citations omitted.)

My first reaction was that the DOJ was opposing an Obama Administration position. But the EEOC brief was filed last month. That said, the EEOC still has only one Republican — Victoria Lipnic, who is acting chair until Janet Dhillon is (presumably) confirmed as chair — and three Democrats (Chai Feldblum, Jenny Yang, and Charlotte Burrows). So I guess that’s how this all happened?

I will have a post soon that details the DOJ’s arguments as to why Title VII should not include sexual orientation discrimination, as I’ve done setting forth the arguments for the other side.