DOJ and EEOC now at odds over LGBT Title VII protections

The DOJ and EEOC are now at odds over whether the Civil Rights Act protects LGBT workers.

The United States Department of Justice (DOJ) recently filed an amicus brief in a federal case in New York in which it contended that Title VII of the 1964 Civil Rights Act does not protect employees on the basis of sexual orientation or gender identity, according to Fortune. The filing represents a reversal of the DOJ's position under the previous administration, which contended that LGBT employees were protected from employment discrimination under Title VII. The change in position also puts the DOJ at odds with another federal agency, the Equal Employment Opportunity Commission (EEOC), which oversee Title VII claims and contends that LGBT employees are still protected under Title VII.

DOJ's amicus brief

The DOJ's unusual intervention in a federal court case in which it was not a party shows how different the federal department's approach to LGBT employment rights are under the present administration. In court papers, the DOJ argued that Title VII, which protects employees from discrimination on the basis of race, color, national origin, sex, and religion, does not extend to protection against discrimination on the basis of sexual orientation or gender identity.

That position is a dramatic reversal from the DOJ's position under the previous administration, which agreed with an EEOC ruling from July 2015 that Title VII protections apply to LGBT employees. The EEOC based its ruling on the argument that discrimination on the basis of sexual orientation is, essentially, discrimination on the basis of sex since sexual orientation can only be understood in relation to a person's sex.

EEOC's position unchanged

To make the matter more complicated, the EEOC also filed an amicus brief in the same case, but in its amicus brief it maintained that Title VII still applied to sexual orientation. As Bloomberg BNA reports, while the EEOC is a five-member voting body that could soon have a Republican majority, there is no guarantee that a Republican majority would change the EEOC's stance on Title VII protections for LGBT workers. The current EEOC Acting Chair Victoria Lipnic, herself a Republican, seemed to suggest that because the EEOC's position on sexual orientation was already "approved and voted on" that it may remain unchanged.

The EEOC oversees discrimination, retaliation and harassment claims under Title VII and its unchanged position means that, for the time being, it will continue to investigate the more than 3,000 sexual orientation charges under Title VII that are currently pending, regardless of the DOJ's position. Ultimately, the question of whether Title VII does extend to sexual orientation and gender identity is one that may have to be decided by the Supreme Court.

Harassment and discrimination claims

Any federal worker who has been the victim of harassment or discrimination in the workplace should contact a federal employment law attorney as soon as possible. An experienced attorney can help workers understand what rights and legal options they have before them, including assisting them with whatever claims they may be able to pursue.