On June 23, 2017, the Equal Employment Opportunity Commission (EEOC) filed an amicus brief in the 2nd Circuit appeal of Zarda v. Altitude Express, expressing a position they have held since 2015: “Sexual orientation discrimination is, by definition, discrimination “because of … sex,” in violation of Title VII [of the Civil Rights Act].”
On July 26, 2017, the Department of Justice (DOJ) filed their own amicus brief taking the opposite position, that “discrimination because of sexual orientation is not discrimination because of sex under Title VII.”
These opposing opinions mirror the different verdicts issued by the 7th Circuit, which agreed with the EEOC and extended Title VII protections to sexual orientation, and the 11th Circuit, which found that sexual orientation discrimination is not actionable under Title VII.
The EEOC has been successful for several years in gaining protections for victims of employment discrimination based on gender identity and transgender status under Title VII sex protections. Yet it was not until 2016 that the Commission engaged in successful litigation against employers for sexual orientation discrimination (EEOC v. Pallet Companies d/b/a IFCO Systems NA, Inc. ("IFCO"), D. Md., No. 1:16-cv-00595-RDB (2016), EEOC v. Scott Medical Health Center, P.C., W.D. Pa., No. 2:16-cv-00225-CB (2016)). At the time of these cases, the DOJ abided by the EEOC’s stance.
At this year’s National ILG Conference in San Antonio, TX, acting EEOC Chair Victoria Lipnic delivered the Thursday morning keynote address, in which she fielded a question about the DOJ’s amicus brief from the audience. In defense of the Justice Department, Lipnic said, “It is a perfectly principled legal position for the Justice Department to argue that as a matter of law, the current language in Title VII does not cover sexual orientation.” However, she indicated that the EEOC will continue with the interpretation that sexual orientation is protected under Title VII until the Supreme Court rules otherwise, and she does not expect that stance to change with a Republican majority at the EEOC.
By Dave Sharrer, Senior Consultant, and Jana Garman, EEO Compliance Manager and Senior Consultant, at DCI Consulting Group