(Reuters) - On May 31, the clerk of the 2nd U.S. Circuit Court of Appeals sent a letter to Acting U.S. Solicitor General Jeffrey Wall, alerting him that the 2nd Circuit had just invited the Equal Employment Opportunity Commission to appear as a friend of the court in an case posing the question of whether Title VII of the Civil Rights Act bars employers from discriminating against gay and lesbian employees. The 2nd Circuit clerk advised the solicitor general’s office that the EEOC’s brief was due by June 26.
She needn’t have bothered sending the letter.
The EEOC did indeed file an amicus brief in the case, Zarda v. Altitude Expressions. As expected, the federal agency sided with the estate of Donald Zarda, a skydiver who claimed his employer, Altitude, violated Title VII when it fired him after finding out he was gay. Zarda’s argument, after all, was based on a 2015 EEOC determination that Title VII’s prohibition on sex discrimination encompasses discrimination based on sexual orientation. The EEOC brief stood by the agency’s 2015 ruling.
But the EEOC brief wasn’t signed by the solicitor general’s office or any other Justice Department lawyers. Only EEOC lawyers, led by staff attorney Jeremy Horowitz, appeared as counsel for the agency.
That’s not terribly unusual. As an independent federal agency, the EEOC can and often does litigate on its own behalf. The Justice Department, which has a more limited role than the EEOC in enforcing Title VII, did not need to get involved in a fight between a private company and an employee.
Nevertheless, late on Wednesday, the Justice Department did weigh in in the Zarda case. DOJ filed its own amicus brief, explicitly disavowing the EEOC’s stance. The DOJ brief, signed by acting assistant AGs Chad Readler and Tom Wheeler, argued primarily that the EEOC and the 7th Circuit, which adopted the agency’s reasoning in its en banc opinion last April in Hively v. Ivy Tech Community College, disregarded the actual language of the statute and misread Supreme Court precedent on interpreting that language. According to the Justice Department, it’s up to Congress, not the courts, to legislate protection for gay and lesbian employees, and Congress has steadfastly refused to do so.
There’s legitimate uncertainty in the courts about whether Supreme Court precedent extends the prohibition on gender discrimination to encompass discrimination against on the basis of sexual orientation. The judges of the 7th Circuit thoroughly aired both sides of the debate in the majority opinion and dissent in the Hively case. (For what it’s worth, I’ve said that I believe Chief Judge Diane Wood wrote a really shrewd majority opinion, relying on Supreme Court decisions by Justice Antonin Scalia.) If you want a deep analysis of the arguments for and against the conclusion that Title VII bars sexual orientation discrimination, I recommend reading the 7th Circuit opinion and dissent. You won’t see anything much in either the EEOC or Justice Department brief in the Zarda case that the 7th Circuit hasn’t already chewed on.
The significance of the Justice Department’s amicus brief, in other words, isn’t so much what it says than that it was filed at all. “It’s profoundly weird,” said Loyola law professor Justin Levitt, who served in the Obama DOJ’s civil rights division. Levitt said it’s unusual for both the EEOC and the Justice Department to file amicus briefs in a single Title VII case. It’s more unusual for them both to provide their views in a case in which neither has definitive regulatory authority. And it’s rarer still, Levitt said, for the Justice Department to file an amicus brief directly contradicting the EEOC.
In fact, Levitt said that although there’s precedent for the EEOC actually to litigate Title VII suits against the Justice Department on behalf of federal employees claiming discrimination, he could not think of another instance in which the Justice Department and the EEOC took opposing positions as amici. “The federal government usually attempts to avoid conflicts like this,” he said.
Well, not the Trump administration. The Justice Department’s split with the EEOC in the Zarda case is the second time in the past two months that the Trump administration has abandoned a federal agency in high-profile employment litigation. As you probably remember, DOJ previously ditched the National Labor Relations Board in Supreme Court briefing on mandatory arbitration provisions that require workers to give up the right to classwide actions.
The NLRB, which is still controlled by Obama appointees, contends the provisions are illegal under the National Labor Relations Act, which protects employees’ right to act in concert. The Obama Justice Department had represented the NLRB in litigation of the issue in the federal circuits. The Trump DOJ, however, submitted an amicus brief to the Supreme Court in June in which it renounced the NLRB and sided with employers who claim the Federal Arbitration Act allows them to require workers to arbitrate workplace disputes. The Justice Department’s reversal means NLRB lawyers can’t rely on the solicitor general’s office and will have to defend the agency’s position themselves.
The Justice Department’s repudiation of the EEOC in the Zarda case shows that its split with the NLRB was no fluke. And according to law professor Levitt and his former civil rights division boss Vanita Gupta, now chief of the Leadership Conference on Civil and Human Rights, the DOJ’s decision to file an amicus brief disavowing the EEOC’s arguments must have been made at the highest levels of the department. “This would have required significant deliberation,” Gupta said.
She and Levitt said it’s significant that the only Justice Department lawyer from the civil rights division to have signed the DOJ’s Zarda brief was Wheeler, a political appointee. No career DOJ civil rights lawyers are on the brief, even though, by regulation, the civil rights division enforces Title VII on behalf of the U.S. (Two career DOJ lawyers signed the Zarda brief but said they are both from the civil division, which defends the U.S. when it’s sued for Title VII violations, rather than the civil rights division, which prosecutes certain Title VII cases on behalf of the U.S.)
“That suggests this was a decision motivated by and handled by the politicals, not a position advocated by lawyers who enforce Title VII,” Gupta said. Levitt agreed. “That’s part of what makes this brief so weird,” he said.
The Justice Department declined my email request for comment on its split with the EEOC. DOJ spokesman Devin O’Malley said in a statement that its amicus brief “is consistent with the Justice Department’s longstanding position and the holdings of ten different Courts of Appeals … (and) reaffirms the Department’s fundamental belief that the courts cannot expand the law beyond what Congress has provided.”
Interestingly, neither the EEOC nor the Justice Department argues that the 2nd Circuit owes much deference to the EEOC’s interpretation of Title VII. The EEOC said in its brief that it’s “the primary agency charged by Congress with interpreting and enforcing Title VII,” and that it has a “strong interest” in how courts read the law. The DOJ brief said the EEOC “is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.”
As the Justice Department’s brief noted, the Supreme Court has repeatedly said the EEOC is entitled to only slight deference because Congress did not give the agency the power to issue rules and regulations interpreting Title VII. The DOJ brief cited the 1991 decision in EEOC v. Arabian American Oil Company. I went back to look at briefing in that case to see whether the Justice Department sided with the EEOC – the more typical alignment of executive branch agencies than what we’re seeing in the Zarda case.
Sure enough, the Solicitor General, at the time Kenneth Starr, was the EEOC’s counsel of record at the Supreme Court in the Aramco litigation. That’s a mere curiosity, of course. But it’s interesting to note that Starr’s deputy SG, who also signed briefs for the EEOC, was none other than John Roberts, now the chief justice of the Supreme Court.
If the issue of whether Title VII prohibits sexual orientation discrimination reaches the Supreme Court, as it is expected to do regardless of what the 2nd Circuit decides in the Zarda case, it’s a good bet that the Trump Justice Department will continue to contradict the stance the EEOC has taken in the federal circuits. The chief justice, as a onetime EEOC defender, may have some questions about that.