DOJ v. EEOC on LGBT: Game on?

Nah. They'll just agree to disagree.

Wednesday was the deadline for the U.S. Department of Justice to respond to the petition for certiorari that was filed by R.G. & G.R. Harris Funeral Homes in the big transgender discrimination case.

As you recall, the Equal Employment Opportunity Commission sued the funeral home under Title VII for discriminating against transgender employee Aimee Stephens, and won at the U.S. Court of Appeals for the Sixth Circuit. However, the Trump DOJ has taken the position that discrimination based on sexual orientation or gender identity does not violate Title VII.

In the DOJ's filing this week, it reiterated that it did not believe LGBT discrimination was covered by Title VII, which was enacted in 1964 and prohibits discrimination based on "sex."

The Justice Department is asking the Supreme Court to defer hearing the R.G.-G.R. case until after it decides whether to review two other LGBT-Title VII decisions, Zarda v. Altitude Express and Bostock v. Clayton County (GA). In Zarda, the U.S. Court of Appeals for the Second Circuit held that Title VII prohibited sexual orientation discrimination. In Bostock, the U.S. Court of Appeals for the Eleventh Circuit held that Title VII did not prohibit sexual orientation discrimination. The employer in Zarda and the plaintiff in Bostock have both asked the Supreme Court to grant certiorari.

The government was not a party in Zarda or Bostock, so if the Supreme Court reviews them rather than R.G.-G.R., it should be a little less awkward for the government.

The DOJ suggested that, after the Supreme Court decides Zarda and Bostock, it can then apply the same principles to the R.G.-G.R. transgender discrimination case. On the other hand, if the Supreme Court decides not to review Zarda or Bostock, the DOJ says it shouldn't review R.G.-G.R., either.

Not sure of your circuits? Check our handy guide!

In an interview this week with Bloomberg BNA's Daily Labor Report, EEOC Acting Chair Victoria Lipnic said that the EEOC would continue to pursue sexual orientation and gender identity discrimination cases under Title VII despite the contrary position taken by the Justice Department. However, she acknowledged that the EEOC's position could change once Trump nominees Janet Dhillon and Daniel Gade are confirmed. And if the Supreme Court ultimately rules that LGBT discrimination is not covered by Title VII, the EEOC won't have a choice but to change its position.

A news headline Thursday morning about the DOJ filing said, "OK TO DISCRIMINATE," implying that the Justice Department thinks LGBT discrimination is peachy keen. We'll probably be hearing a lot of that in the next few weeks, but it is not a fair representation of the DOJ's position. The agency's position is that Title VII was not intended to prohibit LGBT discrimination. The DOJ takes no position on whether Congress should amend Title VII to specifically include it, or whether Congress should enact other legislation to protect LGBT rights.

Image Credit: From flickr, Creative Commons license, by Stephanie Stout.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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