EEOC Will Hold Ground on Sexual Orientation Protection

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By Jay-Anne B. Casuga

The Equal Employment Opportunity Commission will continue to interpret a federal civil rights law as prohibiting workplace sexual orientation discrimination, EEOC Acting Chair Victoria Lipnic (R) said Aug. 3.

“We will keep going,” Lipnic said. “We will see eventually what the Supreme Court has to say about it.”

Lipnic’s comments came a week after the Justice Department took the position that gay, lesbian, and bisexual workers aren’t covered by Title VII of the 1964 Civil Rights Act. That stance put the DOJ at odds with the EEOC, which since 2015 has interpreted Title VII’s prohibition against sex discrimination as encompassing sexual orientation bias.

The DOJ stated its Title VII interpretation in an amicus brief submitted to the U.S. Court of Appeals for the Second Circuit. The full appeals court will decide whether Title VII covers sexual orientation. The EEOC also filed an amicus brief in the Second Circuit case .

The commission declined to comment on the DOJ’s brief at the time it was filed, but Lipnic’s comments shed light on the agency’s enforcement plans moving forward.

No Change Under Republican Majority?

The EEOC is a five-member voting body. President Donald Trump nominated two Republicans, Janet Dhillon and Daniel Gade, to serve on the commission. If confirmed by the Senate, they will join Lipnic to create a Republican majority at the agency.

But Lipnic seemed to indicate that a Republican majority wouldn’t necessarily change the EEOC’s interpretation of Title VII as barring sexual orientation discrimination.

“This is an approved and voted-on position,” she said.

When Lipnic became acting chair in January, the commission had more than 3,000 sexual orientation bias charges pending, she said. The agency also was investigating 300 cases that included transgender discrimination claims, she said.

“The discrimination has been pretty horrendous and blatant,” Lipnic said. “I am not interested in seeing EEOC walk away from any of these people.”

Competing Interpretations ‘Perfectly Legitimate’

However, the EEOC’s position doesn’t make the DOJ’s legal interpretation invalid.

“The fact that there are competing legal interpretations is perfectly legitimate,” Lipnic said. “It is a perfectly principled legal position for the Justice Department to argue that as a matter of law, the current language in Title VII does not cover sexual orientation.”

Congress hasn’t acted to expressly include sexual orientation protections in Title VII. Various bills that would have amended the law have failed for decades.

There’s also “no doubt” that Congress wasn’t contemplating sexual orientation discrimination in 1964, Lipnic said.

“They barely wanted women to be included in Title VII,” she said. “It was controversial to include the ‘because of sex’ language at that time.”

Federal appeals courts are currently split on the issue. The full Seventh Circuit in April became the first appeals court ever to hold that Title VII bars sexual orientation discrimination. A three-judge panel of the Eleventh Circuit reached the opposite conclusion, and the full court last month declined to review the ruling.

“It is an open legal question,” Lipnic said, adding that it will likely be heard by the U.S. Supreme Court in the next “year or year and a half.”

“It raises all kinds of questions of statutory interpretation,” she said. “What does it mean if a term has changed over time culturally? What does that mean for courts having to follow precedent?”

Lipnic spoke at the National Industry Liaison Group’s annual conference in San Antonio. The nonprofit association collaborates with federal contractors, the Labor Department, the EEOC, and other government agencies to support affirmative action and equal opportunity compliance.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

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