Standing With the EEOC on Sexual Orientation Discrimination

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Tuesday, August 15, 2017

On July 26th, the current administration launched two noteworthy attacks against the LGBTQ community. First, the President took to Twitter to announce that no transgender person will be allowed to serve in the military in any capacity. Second, in a combative and unconventional step, the U.S. Department of Justice (DOJ) filed an unsolicited brief in a case before the Second Circuit Court of Appeals directly opposing the Equal Employment Opportunity Commission (EEOC). The case, Zarda v. Altitude Express, involves a skydiving instructor from Long Island, who was fired from his job in 2010 after he disclosed his sexual orientation to a client. Mr. Zarda argued that his termination constituted unlawful sex discrimination under Title VII of the Civil Rights Act of 1964. Departing from the EEOC’s position, the DOJ now asserts that Title VII does not prohibit employment discrimination based on an individual’s sexual orientation.

The EEOC is an independent federal agency tasked with enforcing our nation’s civil rights laws as to private employers, whereas the Attorney General’s office carries out enforcement with respect to state and local governments. The DOJ, which has no role in this case, nonetheless found it necessary to disclaim the EEOC’s ability to speak for the United States and to trivialize its position—claiming it should be “entitled to no deference beyond its power to persuade.”

Based on the EEOC’s experience, independence, and most notably, the legal arguments it has put forward, we are persuaded. Relying on the plain text, the EEOC explains that sexual orientation discrimination necessarily requires impermissible decision-making premised on sex. Sexual orientation discrimination inherently involves sex-stereotyping, which the Supreme Court has repeatedly found to be impermissible under Title VII. For almost 40 years, the Court has understood this prohibition to extend to “the entire spectrum of disparate treatment of men and women resulting from sex stereotypes”—which should not exclude stereotypes about the sexual preferences of men or women. Indeed, the Court has also concluded in the Title VII context that “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils,” including same-sex harassment.  Reading Title VII otherwise would require a divergence from the plain language and would perpetuate paradoxical rulings and incoherent jurisprudence.

In contrast, the DOJ relies on a surprisingly unpersuasive statutory argument. Its brief asserts that the plain text of the statute excludes protections based on sexual orientation because sex discrimination requires that employees of one sex be treated worse than similarly situated employees of the opposite sex. The problem here is that nowhere in its “plain text” does Title VII actually impose this narrow requirement.

As the oldest nonprofit legal organization dedicated to advancing the legal equality of women and girls, Legal Momentum has been litigating employment discrimination suits to dismantle sex stereotyping since the 1970s. We stand behind the EEOC, which has extensive experience interpreting Title VII and enforcing the law on behalf of employees. The narrow-minded vision of sex discrimination endorsed by the DOJ reflects the type of antiquated thinking on sex and gender that necessitated Title VII protections in the first place. To ensure the integrity of our civil rights infrastructure, it is essential that independent federal agencies maintain their independence to carry out their duties in accordance with their established expertise and practice free from political interference. We applaud the EEOC for charting this course and hope that it remains steadfast.

One final point requires comment: the DOJ also critiques the EEOC for changing its position on this issue. Changing a position to account for Supreme Court precedent and a more sophisticated understanding of sex discrimination is not a weakness; it is the mark of an enlightened forward-thinking society, and it reflects an approach that we hope the Second Circuit will follow.

Contributed by: 

Seher Khawaja
Christina Pisani