A Government Divided on Title VII’s Protection of Individuals Identifying as LGBT10.24.17
Reality can, at times, be stranger than fiction. As Season 7 of the Game of Thrones got under way (yes, I am a Thronie), another conflict a bit closer to reality was brewing between two federal agencies, the Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ), both of which are empowered to enforce anti-discrimination laws. It was our own house divided.
The first chasm between these two agencies played out in Zarda v. Altitude Express, a case pending before the United States Court of Appeals for the Second Circuit Court involving a skydiver who alleged that he was terminated in violation of Title VII for disclosing to a female client that he was gay. According to Zarda, he made the disclosure so his female clients would not feel awkward by how tight he was strapped to them during tandem jumps. On June 23, 2017, the EEOC filed an amicus curiae (friend of the court) brief in favor of Zarda arguing that Title VII prohibits discrimination based on sexual orientation because it involves sex-stereotyping, associational discrimination and impermissible sex-based considerations.
On July 26, 2017, the DOJ filed its own amicus curiae brief in favor of Altitude Express arguing that Title VII does not prohibit discrimination based on sexual orientation. In its brief, the DOJ argued that the EEOC does not “speak for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.” The DOJ made clear that the EEOC has overstepped its authority and reversed course on years of precedent. Interestingly, the Justices were so enthralled by the conflict that they grilled the DOJ’s counsel for several minutes on how two federal agencies empowered to enforce Title VII (one in the public sector and the other in the private sector) could be on opposite sides of the issue, especially when they share and coordinate on internal decision-making processes. If you listen to the questioning, you will hear much tap dancing. A ruling from the Second Circuit is expected this fall.
The second chasm became apparent over transgender rights only recently. On September 29, 2017, the EEOC sued a Denver company, A&E Tire, Inc., for discriminating against a transgendered male. According to the EEOC, the company violated Title VII when it withdrew its offer of employment after discovering, through a background check, that the male candidate was born a female. This lawsuit, much like others that preceded it, tracks the EEOC’s interpretation and enforcement of sex discrimination under Title VII.
Less than a week later, U.S. Attorney General Jeff Sessions issued a memorandum to all DOJ department heads reversing his predecessor’s interpretation of Title VII’s protection and making clear that “Title VII does not prohibit discrimination based on gender identity, per se.” According to Attorney General Sessions, sex discrimination encompasses discrimination between men and women and not discrimination based on transgender status. Given the DOJ’s willingness to stand opposite the EEOC on issues of sexual orientation discrimination, it is likely to do so on transgender cases.
So what does this all mean?
Just like Season 7 of Game of Thrones, it is unclear how this conflict will be resolved. What is clear is that multiple battles will be fought – even within the same house – until the United States Supreme Court has the final word. Absent a legitimate business reason, employers would be well served to continue to prohibit workplace discrimination on the basis of sexual orientation and gender identity for the following reasons. First, the EEOC will continue to enforce Title VII broadly and look for “test” cases that compel the conclusion that sex discrimination encompasses sexual orientation and gender identity discrimination. We expect that charges and lawsuits against employers in this area will continue to rise. In fact, in just the last three years, the number of EEOC charges have doubled, and the EEOC’s monetary recovery has increased by 400%. Second, several states, cities and local municipalities around the country have passed their own non-discrimination laws prohibiting sexual orientation and/or gender identity discrimination. Third, the law is settled that “gender stereotyping” is an impermissible form of gender discrimination. When faced with unchecked harassment of individuals who identify as LGBT, courts appear to be more inclined to permit these claims to proceed irrespective of the scope of Title VII.