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By Chris Opfer
The U.S. Supreme Court or Congress should eventually resolve a dispute inside the Trump administration over discrimination protections for LGBT workers, Equal Employment Opportunity Commission Acting Chairwoman Victoria Lipnic (R) and Commissioner Chai Feldblum (D) told Bloomberg Law Nov. 8.
“I think this is going to be a race between the Supreme Court and Congress as to who first extends protections to LGBT people,” Feldblum said. “I used to think that Congress was going to be way behind the Supreme Court. Now, the way it looks is they might be on the track at literally the same time.”
The EEOC says businesses are banned from discriminating against LGBT workers because it’s a form of sex bias. The Justice Department disagrees, saying Congress didn’t have lesbian, gay, bisexual, and transgender workers in mind when it passed a federal workplace discrimination law more than five decades ago.
Lipnic, currently the EEOC’s sole Republican, wants to see the high court take up one of two pending cases asking it to decide whether workers claiming they were fired because of their sexual orientation are protected by federal law. Those cases, which the Supreme Court is scheduled to consider in a conference Nov. 30, test the limits of Title VII of the 1964 Civil Rights Act’s ban on sex discrimination on the job.
Feldblum says LGBT discrimination is a form of sex discrimination already covered by the law, but she wants the high court to “let this issue percolate” in the appeals courts before weighing in. She also supports moves by Congress to make explicitly clear that Title VII bans sexual orientation and gender identity bias.
Democrats are widely expected to use their newly won control of the House to push an expansive bill to ban workplace LGBT discrimination and in a wide variety of other situations. It’s not clear whether Republican leadership in the Senate would consider the legislation or if the measure could get the 60 votes needed to be passed in that chamber.
A Supreme Court ruling on the issue could push lawmakers’ hands, Lipnic said.
“It’s always my preference that Congress should act,” she said.
One of the two cases that the high court has been asked to review features a lawsuit by the estate of a New York skydiving instructor who said he was fired because of his sexual orientation. The EEOC and Justice Department in 2016 argued opposing sides in that case at the appellate level, creating what one federal appeals court judge called an “awkward” situation in the courtroom. The other case involves a local government worker in Georgia who said he was fired because of his sexual orientation.
A Justice Department spokeswoman declined Bloomberg Law’s request for comment.
In addition to the two sexual orientation bias cases, the Supreme Court has also been asked to review a U.S. Court of Appeals for the Sixth Circuit ruling against a Michigan funeral home that fired a worker when the owner learned she was transitioning to a woman. Although the EEOC originally sued on behalf of Aimee Stephens, the Justice Department has the sole authority to represent the government in the case if the Supreme Court takes it.
Solicitor General Noel Francisco recently urged the court to decline to take up the funeral home case. But he also said the Sixth Circuit got the decision wrong.
“The court of appeals misread the statute and this Court’s decisions in concluding that Title VII encompasses discrimination on the basis of gender identity,” Francisco said in a brief filed with the court. Francisco argued that Congress has chosen not to update Title VII to explicitly include gender identity, despite doing so in a federal hate crimes law.
Former Attorney General Jeff Sessions last year issued a memo laying out the Justice Department’s position on the LGBT bias question.
Lipnic and Feldblum agreed that the the court should take a pass on the transgender bias case, but for a different reason. They said lower courts haven’t been divided over the question in the same way that judges are split on sexual orientation discrimination. Courts outside of the Sixth Circuit have similarly ruled that transgender bias is a form of sex discrimination under federal laws.
The Senate passed a federal ban on LGBT bias in 2013, but that measure didn’t get a vote in the House. Similar legislation has been introduced in Congress several times over the last two decades.
Laws in 20 states and Washington, D.C., directly ban employment discrimination based on sexual orientation and gender identity.
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