In Focus: Trump Administration at Odds with EEOC on Sexual Orientation Discrimination

Allen Smith, J.D. By Allen Smith, J.D. July 27, 2017
In Focus: Trump Administration at Odds with EEOC on Sexual Orientation Discrimination

​The U.S. Department of Justice filed a brief July 26 stating that Title VII of the Civil Rights Act of 1964 does not prohibit discrimination based on sexual orientation—a position counter to the Equal Employment Opportunity Commission's (EEOC's) stance that such discrimination constitutes a type of sex discrimination. The brief, filed in a case before the 2nd U.S. Circuit Court of Appeals, acknowledged that the Justice Department's position contradicted the EEOC's but said 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."

Appellate Court Split

The appeals courts also are divided on the question of whether Title VII prohibits sexual orientation discrimination. The 7th U.S. Circuit Court of Appeals adopted the EEOC's position in the case of an Indiana teacher who claimed that a community college did not hire her full time and ultimately fired her because she is a lesbian. However, the 11th Circuit has ruled that sexual orientation discrimination is not covered by Title VII. That case centered on the claims of a lesbian security guard that she was harassed and fired because of her sexual orientation.

An appellate court split makes the issue ripe for consideration by the U.S. Supreme Court, should it decide to review one of the cases. (SHRM Online)

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

Skydiving Case

The Department of Justice's filed its brief in the case of a skydiving instructor who alleged he was fired by his employer in 2010 because of his sexual orientation. A three-judge panel of the 2nd U.S. Circuit Court of Appeals ruled that the instructor had no claim for sex discrimination under Title VII. But the full 2nd Circuit has agreed to review the case afresh. (SHRM Online)

Consistent Interpretation by Congress

The brief observed that every Congress since 1974 has declined to amend Title VII to prohibit sexual orientation discrimination. And the brief asserted that the federal government, as the country's largest employer, has a "substantial and unique interest" in Title VII's proper interpretation. (The New York Times)

Sexual Stereotyping

The theory that sex discrimination includes sexual orientation discrimination is based on a 1989 Supreme Court decision involving a woman who claimed her male accounting firm partners said she was too masculine. To improve her chances for partnership, she needed to act more femininely, her partners said. She could not argue that she was targeted because she was a woman but instead asserted that she did not conform to the partners' stereotypes about women. Such stereotyping was ruled unlawful sex discrimination in violation of Title VII. Sexual orientation discrimination arguably also is a form of stereotyping. (The Washington Post)

Gender-Identity Discrimination Not Discussed

Some activists for lesbians, gays, bisexuals and transgender individuals worried that the Justice Department would make a more sweeping claim that gender-identity discrimination isn't covered by Title VII. But the brief did not explicitly address that issue. (BuzzFeed)

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