Justice Dept. Bucks EEOC, Says Sexual Orientation Not Protected

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By Jon Steingart and Patrick Dorrian

The Trump administration says gay and lesbian workers aren’t protected under existing federal civil rights law. In doing so, the administration struck a different note than a chorus of civil rights groups, a growing number of courts, several state and local lawmakers, and the nation’s top job rights agency.

The Department of Justice stated the position in an amicus brief filed July 26 with the U.S. Court of Appeals for the Second Circuit. It said a federal prohibition against sex discrimination in employment doesn’t extend to sexual orientation discrimination ( Zarda v. Altitude Express, Inc. , 2d Cir., No. 15-03775, amicus brief 7/26/17 ).

“The essential element of sex discrimination under Title VII is that employees of one sex must be treated worse than similarly situated employees of the other sex,” the DOJ said. Reading “sex” to include sexual orientation goes beyond that law’s plain text, according to the agency.

The DOJ brief, however, signaled the administration’s support for legal protections for gay and lesbian workers, but under the sex stereotyping theory of sex discrimination, which has been recognized by several federal appeals courts across the country. Sex stereotyping claims under Title VII of the 1964 Civil Rights Act are permissible by workers regardless of their sexual orientation, the DOJ said, because ultimately it must be shown the employer focused on the worker’s sex or gender in mistreating the worker for not conforming to traditional gender stereotypes or norms.

The DOJ’s brief also puts the department at odds with its own federal job rights watchdog. The Equal Employment Opportunity Commission filed a brief with the Second Circuit in June arguing that Title VII must be read to include protections based on sexual orientation.

“It’s awkward because we have this split between the EEOC and the DOJ,” said Anthony Kreis, an employment discrimination law professor at Illinois Institute of Technology Chicago-Kent College of Law in Chicago. Kreis also filed an amicus brief in the case, arguing Title VII covers sexual orientation. “I’m shocked over this internal dissonance within the federal government with the EEOC and the DOJ,” he told Bloomberg BNA July 26 after the DOJ’s filing.

An EEOC spokeswoman told Bloomberg BNA July 27 that the agency had no comment on the DOJ’s brief.

Does DOJ Trump EEOC?

Rights advocates and lawyers involved in the case disagreed about the potential impact of the administration’s move.

“I think it’s significant,” Kimberlee W. Colby of the Center for Law and Religious Freedom told Bloomberg BNA July 27. The DOJ took the correct position in supporting the view that federal courts had unanimously held for 50 years, she said. It was “really the EEOC that changed positions,” she said. Her organization filed an amicus brief July 26 on behalf of the Christian Legal Society and the National Association of Evangelicals.

Attorney William J. Olson in Vienna, Va., agreed. “The EEOC went off the reservation during the Obama administration.” It’s great that the current administration is showing “a return to law and order,” Olson told Bloomberg BNA July 27. He filed a brief with the Second Circuit July 26 for the Conservative Legal Defense and Education Fund and two other groups.

But representatives of Lambda Legal Defense and Education Fund Inc. and GLBTQ Legal Advocates & Defenders (GLAD) both said July 27 that the DOJ’s brief “isn’t a game-changer.” Lambda and GLAD have also filed amicus briefs with the Second Circuit.

The arguments offered by the DOJ are “retreads, if anything,” Gregory Nevins, a senior attorney with Lambda said.

The Second Circuit likely won’t give “extraordinary weight” to the DOJ’s brief over the many others filed in the case, Gary Buseck, GLAD’s legal director, said. The DOJ “doesn’t add anything new or persuasive,” he said.

The Second Circuit rarely grants full court review, he said. “It did so here, I think, because it feels it has to take a look at the issue again” to determine if an update in its case law is necessary, Buseck said. “I think the court wants to hear the full breadth of all arguments” offered to it, he said.

Colby said she assumes the Second Circuit will read both the EEOC’s and DOJ’s briefs. But the DOJ makes clear at the outset of its brief that the EEOC didn’t speak “for the United States” and that the job rights enforcement agency’s view “is entitled to no deference,” she said.

“The president is the chief law enforcement official of the country,” Olson said.

DOJ: Question for Congress, Not the Courts

The sex discrimination provision of Title VII doesn’t list sexual orientation as a protected trait.

Thus far, only one federal appeals court—the Chicago-based Seventh Circuit in Hively v. Ivy Tech College—has found that Title VII necessarily prohibits discrimination against gays and lesbians, and that gay and lesbian workers don’t need to rely on the sex stereotyping theory to prove Title VII bias. A three-judge panel of the Atlanta-based Eleventh Circuit reached the opposite conclusion, and the full court in July declined to review the ruling.

But it’s up to Congress and not the courts to expand Title VII to include sexual orientation, the DOJ said.

“Today’s brief is consistent with the Justice Department’s longstanding position and the holdings of ten different Courts of Appeals,” a DOJ spokesperson said in a statement emailed after the brief was filed. “The brief also reaffirms the Department’s fundamental belief that the courts cannot expand the law beyond what Congress has provided.”

Other laws alluded to in the statement, which address advanced penalties for certain crimes and federal funding issues, specifically include the term “sexual orientation,” the DOJ says. Whether Title VII should be amended to account for changing societal views on what “sex” means, as the Seventh Circuit found, remains a policy question for Congress to decide, the DOJ said.

Congress has for decades failed—typically along party lines—to approve legislation that would provide express protections under federal law for gay and lesbian workers. Those failures, along with federal lawmakers not moving to add sexual orientation bias protections to Title VII since its 1964 passage, “ratifies” that Title VII, as written, doesn’t protect gays and lesbians, the DOJ said.

Many court watchers believe the question of workplace rights based on sexual orientation, and transgender status, will one day have to be decided by the U.S. Supreme Court.

Lack of Job Protections Has Consequences, Lawyer Says

The case at hand was filed by the estate of Donald Zarda against Altitude Express Inc., which allegedly fired Zarda, now deceased, because he was gay. One of the estate’s lawyers told Bloomberg BNA July 27 the lack of federal job protections for gay and lesbian workers is having grave consequences.

New York-based attorney Gregrory Antollino noted he will be filing a brief in the case Aug. 9 responding to the DOJ’s and other briefs that were filed July 26. “We also have many briefs” filed by other amicus earlier in the case “that support us from legal and sociological perspectives,” he said.

The DOJ makes “crabbed” legal arguments of the type that were rejected by the Supreme Court in 1967 in Loving v. Virginia , Antollino said. “I think it’s very sad” that we have to respond to those types of arguments, he said.

Altitude Express’s lawyer told Bloomberg BNA, however, that the Second Circuit shouldn’t reach the issue that seems to have everyone else talking. That includes 50 of the nation’s top companies and organizations.

Zarda admitted in his EEOC charge that he was fired based on his behavior—discussing his sexual orientation with a skydiving client—not because of his sex, Saul D. Zabell said July 27. He’s with Zabell & Associates, P.C. in Bohemia, N.Y.

Moreover, Zarda also raised a claim under New York state’s protections for gay and lesbian workers that was rejected by a jury, Zabell added. As a result, the company said in its brief, the estate lacks a viable argument that Zarda was discriminated against because of his sexual orientation and the Second Circuit shouldn’t be reviewing the case.

To contact the reporter on this story: Jon Steingart in Washington at jsteingart@bna.com; Patrick Dorrian in Washington at pdorrian@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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