According to the Justice Department, LGBT employees in California and elsewhere are not covered by federal civil rights legislation. The department issued its opinion after a New York skydiving instructor filed a lawsuit claiming that he was terminated for being gay. He filed the claim under Title VII of the Civil Rights Act of 1964, asserting that it banned discrimination on the basis of sex. The Equal Employment Opportunity Commission agreed with his interpretation of the law.

The EEOC takes the position that discrimination based on sexual orientation is hard to distinguish from discrimination based on gender. However, the DOJ claims that Congress has failed to amend the law to include protection for LGBT workers. This was despite acknowledging that attitudes have changed toward those in the LGBT community. While this is in agreement with how courts have ruled in similar cases, it is a reversal from positions taken by President Obama.

Some groups have applauded the decision noting that only Congress can change federal law and that it has failed to do so. In addition to taking a stance in the New York employment case, the Trump administration also called for a ban on transgender individuals serving in the military. However, that policy is unlikely to change until President Trump issues a formal directive.

Individuals who believe that they were subject to employment discrimination may wish to file a lawsuit. It may be possible to obtain compensation for back pay and other damages. In many cases, an employer may be liable for damages whether or not it knew about the discriminatory behavior that employees or managers may have engaged in. The advice of an attorney might be helpful to those who have been adversely affected in such a manner.