In a remarkable turn of events, the U. S. Dept. of Justice (DOJ) has filed a brief in the Second Circuit Court of Appeals asserting that Title VII of the Civil Rights Act of 1964 does not prohibit discrimination against LGBT employees -- only a month after the U. S. Equal Employment Opportunity Commission (EEOC) filed a brief in the same case taking exactly the opposite position.
Brian Farrington, head of the Cowles & Thompson Employment Law section discusses the conflict. "The case is Zarda v. Altitude Express, Inc., where a gay employee claimed he was fired for his sexual orientation, and brought suit against the employer for violating Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination 'because of sex.' Earlier cases addressing whether Title VII prohibited discrimination because of sexual orientation uniformly said it did not. Further, there have been numerous efforts to amend the law explicitly to protect LGBT employees, all of which have failed.
"The law has been developing, however, and under President Obama the EEOC and other federal agencies announced that the official position of the federal government as an employer was that Title VII protection extended to LGBT employees. Then earlier this year, the full Seventh Circuit handed down an en banc decision, Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017), which agreed with the EEOC.
"Now, with the brief in Zarda, the Trump administration is clearly signaling that it is taking a view opposite that of the Obama administration. Given that Hively already created a conflict among the circuits with respect to this issue, there is little doubt that the Supreme Court will eventually have to weigh in."
Monica Narvaez, Of Counsel attorney in the Employment Law section, expects that the Department of Justice is preparing in anticipation of ultimately reaching the Supreme Court. She cautions employers, "Be careful because this is a hot-button topic that is sure to be heavily contested, and even if the law of the Fifth Circuit 'allows' discrimination, the EEOC may not - and the Supreme Court could ultimately soon rule against you."
Farrington agreed, adding, "Given that there's already a circuit split, it will eventually go to the Supreme Court. In the meantime, I would expect the EEOC to be directed to stop finding discrimination, at least outside the Seventh Circuit, and in any circuit with no contrary court of appeals decisions. I'll bet they will get some pushback, too -- some EEOC Regional Attorneys could resign.
"Another interesting aspect is federal employment. The OPM, OSC, and the MSPB have all taken the position that LGBT employees are protected. Will Trump order the Commission and the other agencies to change their official positions?"
Stay tuned as we monitor this further.
Return to list.