Part of maintaining a diverse workforce means providing equal protections for employees regardless of gender, race, creed, age, disability, or sexual orientation. When a government fails to offer these protections to its citizens, a truly diverse workplace cannot exist.

The Equal Employment Opportunity Commission (EEOC) traditionally interprets Title VII of the Civil Rights Act, which prohibits discrimination based on sex, to also prohibit sexual orientation-based discrimination. Now, in direct defiance of its fellow federal agency, The Department of Justice (DOJ) has challenged the EEOC interpretation by inserting itself into a discrimination lawsuit in New York’s Second Circuit Court of Appeals between a skydiving instructor and the company he worked for. The brief submitted by the DOJ says that Title VII should not be interpreted to include sexual orientation as a form of sexual discrimination.

The State of State Laws

If the DOJ succeeds in changing the definition of sex-based discrimination, LGBTQ+ workers will suddenly lose a federal fight they thought they’d won a long time ago.

“Unfortunately, if the DOJ succeeds, it will remove an important tool against discrimination directed at employees on the basis of their sexual orientation or sexual identity in states that have not passed laws protecting LGBTQ+ workers,” says Aaron Goldstein, labor and employment partner at law firm Dorsey & Whitney. “While the federal EEOC has fought to expand federal anti-discrimination laws to protect LGBTQ+ workers, the DOJ is looking to unwind recent decisions recognizing that discrimination against a person on the basis of sexual orientation is discrimination ‘on the basis of sex’ … because such discrimination implicates traditional gender stereotypes that men should form intimate relationships only with women, and women should form intimate relationships only with men.”

A DOJ victory in the lower court could have drastic short-term implications for LGBTQ+ workers, even in states with a history of social liberalism, such as New York.

“If the Second Circuit Court of Appeals sides with the DOJ, then federal courts in Connecticut, New York, and Vermont will not recognize claims for discrimination on the basis of sexual orientation under Title VII,” says Goldstein. “The issue is likely to be taken up by the U.S. Supreme Court, since other courts, such as the Seventh Circuit Court of Appeals, have ruled that Title VII does prohibit discrimination on the basis of sexual orientation. If and when the Supreme Court rules on the issue, the Supreme Court’s ruling will be the law of the land.”

If you’re wondering how a definition change could affect LGBTQ+ workers in other states, the answer is: It depends on whether those states have their own protections in place.

Lawyers“California, Colorado, Connecticut, Delaware, Washington DC, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Washington, and Wisconsin have state laws prohibiting private, non-government employers from discriminating against employees on the basis of sexual orientation,” Goldstein says. “Alaska, Arizona, Indiana, Kansas, Kentucky, Michigan, Montana, Ohio, and Pennsylvania have executive orders or personnel regulations prohibiting government employers from discriminating against employees on the basis of sexual orientation. The Second Circuit’s – and, ultimately, the Supreme Court’s – ruling on Title VII will not affect state laws protecting employees from discrimination on the basis of sexual orientation. However, LGBTQ+ employees without such state laws will be left vulnerable to discriminatory harassment and termination.”

The Case of Federal Agency vs. Federal Agency?

If anyone reading this is thinking that one federal agency challenging another in its own backyard like this is weird – you’re right.

“It is extremely unusual for the Department of Justice to weigh in against the EEOC on a matter clearly within the EEOC’s mandate,” Goldstein says.

The DOJ inserted itself into the case by filing an “amicus curiae,” or “friend of the court” brief. Considering the submission of the brief rode the coattails of President Trump’s announcement that he would ban transgender troops from serving in the military, the true motivations of the DOJ seem suspect to some.

“On a deep level, the DOJ and EEOC’s positions represent a dispute in legal philosophy,” Goldstein says. “The DOJ takes the position that laws are stillborn, incapable of growth or change. The EEOC and the Seventh Circuit, by contrast, embody the view that laws are principles that must be reinterpreted in light of changing social norms and understanding. What it means to discriminate against someone on the basis of ‘sex’ is something that society continues to grapple with, and as our views on that issue change and improve, so should the courts’ jurisprudence. Earlier cases failed to see the apparent contradiction in prohibiting discrimination on the basis of ‘sex’ but not sexual orientation. The DOJ’s position is a surprising and disappointing step backward in the march towards full and protected participation by the LGBTQ+ community in our society.”

Doing the Right Thing

Of course, workers are subject to rules other than federal and state laws. It’s important that socially responsible companies act now to ensure they have embedded within their corporate policies protections for LGBTQ+ workers. Having these policies in place helps to promote an equal and diverse workforce.

Legally speaking, companies can take action against employees engaging in discrimination, even if state and federal laws don’t apply.

“Companies can and should adopt policies prohibiting discrimination against employees on the basis of sexual orientation and gender identity, including those in states that have not passed laws enshrining such protections,” Goldstein says. “Companies are free to discipline and even terminate employees who harass or discriminate against LGBTQ+ colleagues, even in states without legal protections for LGBTQ+ workers. LGBTQ+ workers and their allies should lobby their local, state, and federal governments to pass laws unequivocally recognizing and protecting the equal dignity of all members of our community.”

This article is for informational purposes only and does not constitute legal advice.

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