In Focus: EEOC, DOJ Face Off Over Sexual Orientation Discrimination

Allen Smith, J.D. By Allen Smith, J.D. September 28, 2017
In Focus: EEOC, DOJ Face Off Over Sexual Orientation Discrimination

​Title VII of the Civil Rights Act of 1964's prohibition on sex discrimination does not bar sexual orientation discrimination, the U.S. Department of Justice (DOJ) argued before the 2nd U.S. Circuit Court of Appeals on Sept. 26. But the Equal Employment Opportunity Commission (EEOC) asserted that Title VII's prohibition on sex discrimination does encompass sexual orientation discrimination.

DOJ Acknowledges Divide in Positions

The DOJ announced its position in a July 26 brief. The department noted that its stance contradicted the EEOC's but said that the EEOC is "not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade." (SHRM Online)

Some Awkwardness for the 2nd Circuit

"It's a little bit awkward for us to have the federal government on both sides of the case," said 2nd Circuit Judge Rosemary Pooler. She asked attorney Jeremy Horowitz, who argued for the EEOC, if the EEOC sought input from the DOJ on the EEOC's brief. Horowitz said he did not believe that was appropriate to disclose. (The New York Times)

Skydiving Case

In the case before the 2nd Circuit, a gay skydiving instructor alleged he was fired in 2010 because of his sexual orientation. The skydivers were strapped tightly to the instructor before a jump. He often told female skydivers strapped to him, "Don't worry, I'm gay" to break the ice. After the instructor told one female skydiver that he was gay and allegedly touched her inappropriately, the skydiving company suspended and then fired him for making the passenger uncomfortable. After the plaintiff sued, alleging sexual orientation discrimination under Title VII of the Civil Rights Act, he died in a skydiving accident. His sister and a close friend continued to champion the case, according to The New York Times. A trial court relied on case law that Title VII does not encompass sexual orientation discrimination and a three-judge panel of the 2nd Circuit affirmed, ruling only a decision by all of the 2nd Circuit's 13 judges could reverse that precedent. Now the full 2nd Circuit is hearing the case to decide whether to depart from its decisions that Title VII does not prohibit sexual orientation discrimination. The 2nd Circuit has jurisdiction over Connecticut, New York and Vermont. (SHRM Online)

Split Among Appellate Courts

While a panel of the 2nd Circuit and the 11th Circuit have ruled that Title VII does not cover sexual orientation discrimination, the 7th Circuit ruled earlier this year that Title VII does prohibit such discrimination. The 7th Circuit case arose from the claim of an Indiana teacher who said that a community college did not hire her full time and laid her off because she is a lesbian. An appellate court split makes it likelier that the Supreme Court will hear a case involving the disputed holdings to resolve the divide. The 7th Circuit has jurisdiction over Illinois, Indiana and Wisconsin, while the 11th Circuit's states are Alabama, Florida and Georgia. (SHRM Online)

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

Will EEOC Stick to Its Position?

New members on the EEOC mean that the EEOC may re-examine its position on Title VII's coverage of sexual orientation discrimination. Chairwoman nominee Janet Dhillon noted at her September nomination hearing before the Senate Health, Education, Labor and Pensions Committee that there is a divide in the opinion of federal departments on this topic, as well appellate courts. She said that the commission might interpret the statute in different ways depending on which circuit a case is in, due to the split among the circuit courts. However, Commissioner nominee Daniel Gade said there was no move among commissioners to change the EEOC's position. (SHRM Online)

EEOC Commissioner Proud of Stance

EEOC Commissioner Jenny Yang, whose tenure is coming to a close, said her greatest success when she was EEOC chair from Sept. 1, 2014, to Jan. 22, 2017, was helping the agency interpret Title VII more broadly to prohibit discrimination based on sexual orientation and gender identity. (Law360)


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