Heads You Win, Tails You Lose: Government on Both Sides of the LGBT Protections Debate

Recently, much has been made about the government’s conflicting positions regarding whether sexual orientation is protected by Title VII of the Civil Rights Act of 1964.  The EEOC (“Equal Employment Opportunity Commission”) has continued to assert its position that sexual orientation is protected under Title VII as a form of sex-based discrimination under the Supreme Court’s Price Waterhouse decision.  At the same time, the Department of Justice (“DOJ”) has claimed that Title VII does not protect sexual orientation as it is not based on sex.   Many have taken extreme umbrage at DOJ’s position as a complete reversal of the previous administration’s position as the Department filed an unsolicited amicus in the Second Circuit.  However, as the DOJ’s civil division filed the brief, it presents a rare window into the “Jekyll/Hyde” dynamic within the government.  As some agencies broadly seek civil rights protections, the federal government is also one of the world’s largest employers faced with the challenges of limiting countless claims.

The Bouncing Ball in the Courts

The Second Circuit Court of Appeals en banc heard oral arguments on September 26, in Zarda v. Altitude Express.  The case involves a sky-diving instructor, Donald Zarda, who alleges that his sexual orientation was the reason for his termination.  In 2010, Zarda was paired with a female student Rosanna Orellana.  To mitigate any awkwardness from being strapped tightly together as is the case in tandem skydives, Zarda told Orellana that that he was gay.  After the jump, Orellana told her boyfriend, who then complained to Zarda’s employer.  Zarda was terminated soon thereafter, and he sued, alleging he was terminated because of his sexual orientation in violation of Title VII.  In April, a three-judge panel of the Second Circuit rejected this claim, but the Second Circuit granted en banc review.  The Second Circuit must now address the issue of whether Title VII’s prohibition of discrimination “because of . . .sex” encompasses discrimination on the basis of sexual orientation.

In June, the EEOC, filed an amicus brief in support of Zarda, arguing that sexual orientation discrimination is discrimination because of sex.  The EEOC acknowledged that 17 years ago, in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), the Second Circuit concluded that Title VII does not prohibit harassment or discrimination because of sexual orientation.  However, the EEOC noted that since then, a number of courts have analyzed this same issue and reached opposite conclusions based on three arguments for sexual orientation discrimination which have not previously been addressed by the Second Circuit.  The EEOC argued in its brief that sexual orientation discrimination is because of sex because it: (1) necessarily discriminates on the basis of that employee’s sex in conjunction with the sex of that employee’s actual or desired partner; (2) constitutes sex-based associational discrimination by treating individuals differently based on the sex of those with whom they associate; and (3) relies on sex stereotyping because it results in adverse treatment of individuals who do not confirm to the idea that men should only be attracted to women and women only to men.  The EEOC offered additional reasons to overrule Simonton and its progeny – the cases on which Simonton relied on are largely no longer good law and have since been abrogated by the Supreme Court decisions in Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51 (1989), and Oncale v. Sundowner Offshore Oil Servs., Inc., 523 U.S. 75, 79 (1998).  Furthermore, the distinction Simonton draws between valid gender nonconformity claims and invalid sexual orientation claims is unworkable and leads to absurd results.  For example, under Simonton, discrimination against gay men who act “stereotypically feminine” would be illegal but not discrimination against gay men who act “stereotypically masculine.”

In a surprising move, contrary to the EEOC, the DOJ under the current administration filed its own amicus brief in July.  The DOJ’s brief was clear that Title VII does not prohibit sexual orientation discrimination, and that “the EEOC is not speaking for the United States” and its position about the scope of Title VII is entitled to no deference.”  In its brief, the DOJ argued that Title VII does not prohibit sexual orientation discrimination because: (1) the plain meaning of the statute prohibits the disparate treatment of men and women, but sexual orientation discrimination includes circumstances where gay men and women are treated the different same; (2) ten other Courts of Appeals have established that Title VII does not prohibit sexual orientation discrimination; and (3) Congress has ratified the interpretation of Title VII through congressional silence and in 1991, it declined to amend Title VII to add sexual orientation.  The DOJ further noted that whether Title VII should prohibits sexual orientation discrimination remains a question for Congress to decide.

On its face, the EEOC and DOJ dispute seem irreconcilable.  However, closer review reflects that the agencies are acting within their promulgated authority and in their greatest interests.  The EEOC has, at times, taken positions seeking to push the law beyond its present confines.  As an agency without substantive rulemaking authority and one that, many times, has not been afforded deference by federal courts, the Agency often has to resort to amicus filings to try to influence the law.  The DOJ’s civil division, on the other hand, is routinely a defendant in cases against the government.  In addition, the civil division handles an avalanche of personnel cases brought by federal employees and may not relish the thought of expanded liability.  By definition, its positions can be more conservative.  This does not mean that politics have not played a role in this administration’s move.  Rather, the DOJ’s position (as employer) may not be the drastic reversal that has garnered the breathless headlines.

Overall, this points out that uncertainties continue to exist within this administration and labor policy remains in flux.  Employers should closely monitor these developments as the many of these changes could affect enforcement of an employers’ procedures and policies.