On The Case

How Trump DOJ’s about-face on LGBT workplace bias could backfire at SCOTUS

(Reuters) - In July, when the Justice Department officially parted ways with the Equal Employment Opportunity Commission in a brief arguing that the Civil Rights Act does not preclude workplace discrimination based on sexual orientation, former Obama Justice Department official Justin Levitt told me the split was “profoundly weird,” since both the EEOC and the Justice Department have a role in enforcing employees’ federal civil rights.

The LGBTQ advocacy group Lambda Legal is hoping the U.S. Supreme Court sees the intra-government split the same way.

Last week, Lambda and the Stanford Supreme Court Litigation Clinic filed a petition asking the justices to review the 11th U.S. Circuit Court of Appeals’ March 2017 decision in Evans v. Georgia Regional Hospital, in which the appeals court ruled 2-1 that even though Title VII of the Civil Rights Act bars discrimination based on sex, that prohibition does not encompass bias against gay, lesbian and bisexual employees. As the Lambda petition pointed out, the en banc 7th Circuit reached the opposite conclusion a month later in Hively v. Ivy Tech, leaving the federal circuits divided on workplace protection for gays, lesbians and bisexuals.

But the petition argued that uncertainty for both employers and employees isn’t just a matter of geography. Because the EEOC and the Justice Department are, at least for now, espousing different positions on whether Title VII bans discrimination based on sexual orientation – and because Title VII invests both executive branch agencies with the authority to police employers – government enforcement depends on whether employers happen to be under EEOC or DOJ jurisdiction.

The EEOC enforces anti-discrimination law against private employers and adjudicates discrimination claims by federal employees. The Justice Department decides whether to bring discrimination actions against state and local governments. According to Lambda’s Supreme Court petition, it doesn’t make sense that state and local governments don’t have to worry about DOJ enforcement actions if they discriminate against gay and lesbian employees, but the EEOC will go after private companies and the federal government itself for the same conduct.

That disparity, Lambda said, is all the more reason for the Supreme Court to take up the issue. “The protection that public employees have from sex-based discrimination should not depend on whether they work for the federal or a state or local government,” the petition said. “That the federal agencies charged with enforcement of Title VII have staked out wholly contradictory positions regarding the scope of Title VII’s prohibition on sex discrimination further reinforces the need for this court’s guidance.”

The intra-government split on Title VII emerged at the 2nd Circuit, which is considering an en banc appeal of a gay skydiver’s claim that he was fired when his employer, Altitude Expressions, found out about his sexual orientation. The 2nd Circuit invited an amicus brief from the EEOC. The commission’s filing in June stood by the EEOC’s 2015 determination that under Supreme Court precedent in such cases as 1989’s Price Waterhouse v. Hopkins and 1998’s Oncale v. Sundowner Offshore Services, Title VII’s bar on sex discrimination covers discrimination against gay, lesbian and bisexual employees.

But in July, the Justice Department filed its own amicus brief, contradicting the EEOC’s position. The solicitor general’s office argued that the statutory language of Title VII makes no mention of sexual orientation and Congress has steadfastly refused to expand the law to cover gays and lesbians. As I reported at the time, it’s incredibly unusual for the Justice Department to directly contradict the EEOC on an issue in which neither of them has definitive regulatory authority – especially because the 2nd Circuit did not explicitly invite the Justice Department’s view.

Lambda’s petition subtly anticipates more side-shifting from the Trump administration on the rights of gays and lesbians. The filing pointed out that when the Supreme Court was deciding the same-sex marriage case, Obergefell v. Hodges, the Obama Justice Department submitted a brief detailing pervasive workplace discrimination against gays and lesbians. The petition’s mention of the DOJ Obergefell brief almost dares the Trump Justice Department to weigh in on Lambda’s request for Supreme Court review even though it’s not a party in the case.

Georgia Regional Hospital did not appear in the 11th Circuit in the Evans case. According to a letter from the state attorney general’s office, the hospital’s position was that it was not properly served with a complaint and so was not before the appeals court.

I left a phone message with the Georgia assistant AG who filed that letter, asking whether the hospital would file a brief opposing Supreme Court review but did not immediately hear back. The Justice Department declined to comment.