Employment & Labor Insider

The U.S. Department of Justice is reportedly trying to get the Equal Employment Opportunity Commission to reverse its position on whether "sex" discrimination in Title VII encompasses LGBT discrimination.

As our readers know, the U.S. Supreme Court will hear oral argument on this issue on October 8.

During the Obama Administration, the EEOC sued a Detroit-area funeral home chain, alleging (among other things) that the funeral home violated Title VII by discriminating against a transgender employee. (The employee, who was hired when presenting as a male, was fired after disclosing that he would be transitioning to female.) A federal district judge found in favor of the funeral home, but that decision was reversed by the U.S. Court of Appeals for the Sixth Circuit. In April, the Supreme Court agreed to review the case.

In Altitude Express v. Zarda, part of a consolidated sexual orientation discrimination case that is also scheduled for Supreme Court argument on October 8, the DOJ and the EEOC have taken opposing positions: While the case was at the U.S. Court of Appeals for the Second Circuit, the Trump DOJ filed an amicus ("friend of the court") brief arguing that Title VII did not prohibit sexual orientation discrimination. The EEOC, which was still composed of Obama appointees, filed its own amicus brief arguing the opposite. The government was not a party in either of the sexual orientation cases.

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Since that time, President Trump has managed to get some of his EEOC nominees confirmed. The EEOC now has a Trump-appointed chair, a 2-1 Republican majority, and a Trump-appointed General Counsel. And the EEOC's brief in the funeral home case is due today. (That's right -- 8/16/19.)

So the DOJ apparently thought the time was right to persuade the EEOC to abandon the position it took in the funeral home case and in the amicus brief it filed in Altitude Express.

We will continue to monitor. If the EEOC signs off on the DOJ brief, then that would indicate a reversal of its prior position. But, according to Bloomberg Law, an EEOC reversal is not likely. The three-member Commission would have to vote on what position to take, and one of the Republicans -- former Acting Chair Victoria Lipnic -- has indicated that she believes LGBT rights are protected by Title VII and would not vote to reverse the Commission's position. That means she and Democrat Charlotte Burrows would form a majority.

(Both Janet Dhillon, the new Chair, and Sharon Fast Gustafson, the new General Counsel, have declined to state their positions on this issue. However, GC Gustafson has said that she will do what she is instructed to do by the Commission.)

The former funeral home employee, Aimee Stephens, has intervened as a plaintiff in her case, so she and her attorneys can continue to advocate for the pro-LGBT side even if the EEOC were to back out.

UPDATE (8/17/19): The federal government brief has been filed, and the EEOC did not sign on. However, the government has asked that the Sixth Circuit decision in favor of the EEOC be reversed.