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4 Takeaways As DOJ Pivots On Gay Rights In The Workplace

Law360—Braden Campbell

The U.S. Department of Justice weighed in on one of the hottest topics in employment law Wednesday, breaking ranks with the Obama administration's take on the scope of Title VII and telling the Second Circuit that the statute does not prohibit workplace discrimination based on sexual orientation. Here, experts discuss the biggest takeaways from the DOJ's recent move.

Agencies Are at Odds

The argument the DOJ laid out Wednesday doesn't just diverge from its prior stance — it also splits from the U.S. Equal Employment Opportunity Commission.

The EEOC filed an amicus brief at the Second Circuit's invitation last month to weigh in on the case of deceased skydiving instructor Donald Zarda, who claimed he was fired over his homosexuality, arguing sexual orientation discrimination is covered by Title VII's ban on discrimination "based on ... sex" because it is inextricably linked to gender, involves gender-based discrimination over whom a person associates with, and is linked to gender stereotypes and nonconformity.

Such splits between agencies are rare, attorneys say, but not unheard of.

The DOJ notes in its brief the EEOC is not speaking for the federal government and its argument is entitled to "no deference beyond its power to persuade." But the Second Circuit may yet pay the EEOC, which is charged with interpreting Title VII, more heed.

"I think the fact the EEOC was invited in, and they're going to argue their position at oral argument, the Second Circuit [might give it greater deference]," said Outten & Golden LLP LGBTQ workplace rights practice group co-chair Sally J. Abrahamson.

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Employers Shouldn't Change Course

The DOJ notes that it has a "substantial and unique interest in the proper interpretation of Title VII" as the enforcer of Title VII against the country's largest workforce: government employees. But that doesn't mean employers don't risk suits when they discriminate against gay and lesbian workers going forward, attorneys say.

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Aside from the Seventh Circuit, which in April overturned its precedent, every circuit nationwide has found Title VII does not bar discrimination based on sexual orientation.

Despite the sweeping circuit precedent, the EEOC maintains that Title VII proscribes sexual orientation discrimination and has pledged to take action where it finds unequal treatment. That the DOJ has shifted course shows the EEOC may as well, attorneys say, though gay and lesbian workers can still sustain claims that they are discriminated against based on a failure to conform to gender stereotypes.

A patchwork of states and local municipalities have also passed laws barring employers from discriminating against gay and lesbian workers. But even if the EEOC shifts gears or an employer is not covered by a nondiscrimination law, it mistreats gay workers at its peril, attorneys say.

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The Administration Has Spoken

The Trump administration has rolled back rights for the transgender community, pulling guidance directing schools to let transgender students use the bathroom of their choice and, more recently, stating its intent to bar transgender people from serving in the military. But Wednesday's brief marks the administration's first time targeting gay rights.

The move puts other protections for the gay and lesbian community in the crosshairs, attorneys say.

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While the EEOC has issued extensive guidance laying out its belief that Title VII covers sexual orientation discrimination and has listed gay rights as a priority on its current strategic enforcement plan, which runs through 2021, attorneys say it's not a sure thing that sticks.

The five-member commission now has one Republican member, three Democrats and a vacancy. Trump has nominated Republican corporate attorney Janet Dhillon to chair the commission and fill the vacancy, and will soon have another open seat to work with. With a majority in place, the commission could adopt the administration line. 

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Momentum Isn't on the DOJ's Side

The DOJ argues that firing a man because he is gay isn't the same as firing him because he is a man, as Title VII explicitly bans. Nor, it argues, is it the same as firing him because he fails to conform to his gender's stereotype, as the U.S. Supreme Court has held the statute implicitly bans.

Though courts have long followed this interpretation, some have lately become skeptical. The Seventh Circuit held that "it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex," and two Second Circuit judges in March asked for "an appropriate case" that would allow them to review their circuit’s precedent before granting in May the Donald Zarda estate's motion to have the decision reheard en banc.

Against this backdrop, the DOJ's stance clashes, attorneys say.

"There is this normalization of the idea that ... sexual orientation discrimination is sex discrimination, and it does seem this administration is a little out of step," Abrahamson said.

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... Few Americans supported the civil rights and women's rights movements when their landmark battles were playing out in the courts, but that's not so for gay rights. And despite large swaths of the country not being covered by laws barring sexual orientation discrimination, many companies actively protect gay employees.

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