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DOJ and EEOC battle in the Second Circuit over sexual orientation discrimination

July 27th, 2017  |  Pamela Wolf

On the same day that President Trump announced via Twitter that transgendered individuals would no longer be permitted to serve in the U.S. military, the Department of Justice filed an amicus brief in the Second Circuit asserting that Title VII does not include protection against discrimination based on sexual orientation. The move is perhaps another sign of the Trump Administration’s confused approach to LGBTQ rights—negotiating the space between Trump’s January 2017 promise of protection and the demands of a conservative base—given that earlier in the same case, the EEOC filed an amicus brief contending that Title VII’s ban on discrimination based on sex does extend to sexual orientation.

The controversy also may mark a trend of independent federal agencies refusing to toe the line on the Trump Administration’s agenda.

In Zarda v. Altitude Express dba Skydive Long Island, the Second Circuit will hold an en banc rehearing of a three-judge panel’s decision that would not reconsider the employee’s request that it overturn Simonton v. Runyon, a 2000 decision holding that Title VII does not prohibit discrimination based on sexual orientation. Instead, the appeals court adhered to its position in the March 2016 ruling in Christiansen v. Omnicom Group, Inc. that Simonton can only be overturned by the entire court sitting en banc. As such, it held that a gay skydiving instructor had no recourse under Title VII after allegedly being fired based on his sexual orientation. The Second Circuit granted the petition for en banc rehearing on May 25. The case is set for oral argument September 26, 2017.

DOJ sees narrow Title VII scope. The two federal agencies are at loggerheads as to the scope of Title VII’s prohibition against employment discrimination based on sex. To take the wind out of the EEOC’s sails, the DOJ says that while the EEOC enforces Title VII as to private employers, the United States, through the Attorney General, enforces Title VII against state and local governments, and is itself subject to the statute in its capacity as the nation’s largest employer. The EEOC, the DOJ stressed, is not speaking for the United States and is not entitled to deference other than the Commission’s power to persuade.

The Justice Department argues that none of the theories advanced by the EEOC, and the Seventh Circuit in its Hively v. Ivy Tech Community College of Indiana, can “overcome Title VII’s plain text” and the longstanding precedent of the Second Circuit and other courts. “The essential element of sex discrimination under Title VII is that employees of one sex must be treated worse than similarly situated employees of the other sex, and sexual orientation discrimination simply does not have that effect.”

Congress, through its actions and inactions, has made clear that Title VII’s prohibition of sex discrimination does not encompass sexual orientation discrimination, according to the DOJ. “Other statutes and rules may prohibit such discrimination, but Title VII does not do so as a matter of law, and whether it should do so as a matter of policy remains a question for Congress to decide.”

But not so fast . . . In a brief filed a month earlier, on June 23 the EEOC noted that it is the “primary agency” charged with interpreting Title VII. The Commission argues that because claims of sexual orientation discrimination “necessarily involve impermissible consideration of a plaintiff’s sex, gender-based associational discrimination, and sex stereotyping,” they fall “squarely within Title VII’s prohibition against discrimination on the basis of sex.”

The EEOC observed that 17 years ago, in Simonton v. Runyon, the Second Circuit concluded that “Title VII does not prohibit harassment or discrimination because of sexual orientation.” But in the intervening years, the EEOC and an increasing number of courts, including the Seventh Circuit sitting en banc, have analyzed the issue and reached the opposite conclusion. Those courts repeatedly focused on three arguments about sexual orientation discrimination, none of which were addressed in Simonton or Dawson v. Bumble & Bumble (2nd Cir. 2005): that sexual orientation discrimination (1) involves impermissible sex-based considerations, (2) amounts to gender-based associational discrimination, and (3) relies on sex stereotyping. For each of these reasons, sexual orientation discrimination is sex discrimination in violation of the Title VII, according to the EEOC.

The Commission offered additional reasons to overrule Simonton and its progeny: The primary authorities on which that case relied are no longer followed, and as many courts have concluded, the line the Second Circuit drew in Simonton and Dawson between sexual orientation discrimination and discrimination based on sex stereotypes is unworkable and leads to absurd results. Therefore, the EEOC asserted, both precedent and practicality dictate overruling Simonton.

Trump Administration vs. independent agencies. Notably, the EEOC is an independent federal agency that, presumably, is at liberty to follow its own interpretation of Title VII—at least until the Commission’s membership tilts the other direction. This is not the first time the Trump Administration has taken a position adverse to that of an independent agency.

In June, the National Labor Relations Board found itself in a similar posture before the Supreme Court. In NLRB v. Murphy Oil USA, Inc. (No. 16-307), where the Board challenges the lawfulness of class arbitration waivers in employment agreements, the DOJ not only refused to represent the NLRB on the merits, it filed an amicus brief opposing the Board’s position and reversing its own stance in the petition for certiorari (see OJ switches sides in NLRB class action waiver cases, June 19, 2017). The DOJ also argued against the Board’s take in the two cases consolidated with Murphy Oil in the Court’s grant of certiorari, Epic Systems Corporation v. Lewis (No. 16-285) and Ernst and Young LLP v. Morris (No. 16-300).

The case, Zarda v. Altitude Express dba Skydive Long Island, is No. 15-3775.

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