(Reuters) - President Donald Trump has nominated two Republicans to serve on the Equal Employment Opportunity Commission alongside a Trump-appointed acting chair, and two holdover Democrats from the Obama administration. (One of them has been re-nominated by Trump.) At their Senate confirmation hearing in September, the Republican EEOC nominees pointedly refused to commit to the commission’s position that Title VII of the Civil Right Act protects gay and lesbian employees against workplace discrimination based on their sexual orientation. My Reuters colleague Robert Iafolla, who covered the hearing, described the Trump nominees’ position on gay employees’ rights as “murky.”
The Senate has not yet voted on Trump’s EEOC nominees, so, at the moment, the EEOC is composed just of acting chair Victoria Lipnic, a Republican, and two Democratic appointees, Chai Feldblum and Charlotte Burrows. And there’s nothing at all murky about this commission’s stance on Title VII and gay rights. Last week, the EEOC filed an amicus brief in the 8th U.S. Circuit Court of Appeals, backing Mark Horton, a gay man who claims Midwest Geriatric withdrew a job offer when he mentioned his same-sex partner in an email to the company’s co-director.
The 8th Circuit will be the fourth federal appellate court in the last year and a half to consider whether Title VII’s protection against sex discrimination encompasses discrimination based on sexual orientation. This foment follows a pathbreaking 2015 EEOC decision in Baldwin v. Foxx, in which the EEOC interpreted U.S. Supreme Court precedent – most notably on sex stereotyping, same-sex harassment and interracial marriage – to bar discrimination against gay and lesbian employees under the umbrella of the law’s prohibition on gender-based discrimination. In March 2017, the 11th Circuit rejected that reasoning in Evans v. Georgia Regional Hospital, but the following month, the en banc 7th Circuit held in Hively v. Ivy Tech Community College that Title VII protects gay and lesbian employees. Just last month, the en banc 2nd Circuit sided with the 7th Circuit in Zarda v. Altitude Express, deepening a circuit split that won’t go away regardless of what the 8th Circuit decides in the Horton case.
Now that the EEOC is on the record in support of Horton at the 8th Circuit, the big question is whether the Justice Department will file an amicus brief backing Horton’s would-be employer, a chain of nursing home and assisted living facilities. You may remember that DOJ caused a stir in the en banc Zarda case at the 2nd Circuit when it disavowed the EEOC’s amicus brief backing gay employees. In a rare instance of two executive-branch agencies publicly espousing contrary positions in litigation, DOJ argued that discrimination against gay and lesbian employees isn’t the same as sex discrimination and isn’t prohibited under Title VII. (DOJ and the EEOC both enforce Title VII and neither, apparently, is entitled to Chevron deference in interpreting the statute.)
Both the Justice Department and the EEOC declined my request for comment on DOJ plans for the Horton case. I also emailed Midwest Geriatric lawyers Philip Mackey and Michael Jente of Lewis Rice but didn’t hear back.
I’ve previously discussed how the 2nd Circuit majority in Zarda disposed of one of the Justice Department’s key arguments against extending Title VII protection to gay and lesbian employees. DOJ contended that the test for sex discrimination is to compare workers who are the same in every way except for their gender. So under DOJ’s theory, to figure out if sex discrimination encompasses prejudice against gays and lesbians, you have to look at whether an employer treats gays and lesbians the same – not whether lesbian workers are treated differently than straight women or gay men experience discrimination straight men are not subjected to. Unless the employer is more inclined to discriminate against gay men than lesbians (or vice-versa), DOJ argued, it’s not engaged in sex discrimination.
The 2nd Circuit said the Justice Department is pushing the wrong comparison test. Based on the Supreme Court’s 1978 decision in City of Los Angeles v. Manhart, which struck down a city water department rule requiring female employees to contribute more than men to the employee pension fund because women live longer, the 2nd Circuit said the Title VII analysis should focus on sexual orientation as a function of sex, like life expectancy or “ladylike” behavior. Using the test DOJ advocated “would not illustrate whether a particular stereotype is sex dependent but only whether the employer discriminates against gender non‐conformity in only one gender,” the 2nd Circuit said.
Of course, Justice can still present its comparison test argument to the 8th Circuit, along with other arguments for why Title VII doesn’t protect gay and lesbian workers, including decades of Congress failing to amend the statute and pre-2015 precedent from the federal appellate courts, including the 8th Circuit. My guess is that the Justice Department will opt to file an amicus brief in Midwest Geriatric, given the EEOC’s brief probably does not reflect the views of the Trump administration.
Presumably, this issue will end up at the Supreme Court, although the justices declined to grant review last December of the 11th Circuit’s Evans decision. By then, Trump’s EEOC nominees will probably have been confirmed – too late, however, to undo the commission’s support for gay and lesbian rights at the 2nd and 8th Circuits.
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