Last week, on Wednesday July 26, 2017, the United States Department of Justice (DOJ) filed an amicus brief in a Second Circuit case taking the position that Title VII does not protect employees against sexual orientation discrimination. The DOJ argued that sex and sexual orientation are different under the current statutory language of Title VII and “[a]ny efforts to amend Title VII’s scope should be directed to Congress rather than the courts.” The question many employers are asking now is whether or not the DOJ’s position should affect how they operate their businesses and/or their litigation strategy when faced with employee complaints of sexual orientation discrimination. This ASAP reviews the current position of the DOJ, and the effect, if any, on employers.

The DOJ’s surprise amicus brief last week was filed in Zarda v. Altitude Express, Inc., a New York case about a dispute between an employee and his former employer over whether his sexual orientation was the reason behind the termination of his employment. The former employee argues that he has a federal claim under Title VII, but his former employer argues that Title VII does not allow for such claims and that his complaint should be dismissed. The case is currently on appeal before the United States Court of Appeals for the Second Circuit. The question for the Second Circuit is: Do Title VII’s protections against sex discrimination include protections against sexual orientation discrimination? The DOJ says no.

Title VII is a backbone of employment antidiscrimination law in the United States. It prohibits employment discrimination on the basis of race, color, religion, sex and national origin. In recent years, some courts have come to accept the legal theory that Title VII’s protection against sex discrimination includes protection against sexual orientation discrimination. The DOJ weighed in on this debate as a non-party to the Zarda case with an “interest” in the Second Circuit’s decision because “the United States is also subject to Title VII in its capacity as the Nation’s largest employer.” The DOJ rejected several commonly made arguments that sexual orientation discrimination is a form of sex discrimination: (1) the but-for sex discrimination argument, (2) the sexual stereotyping argument, and (3) the associational sex discrimination argument. The DOJ relied on strict constructionism – sex means sex and not sexual orientation. The DOJ argued that if Congress wishes to amend Title VII, it may – but that the courts should stay out of expanding workplace protections to other non-protected groups.

One reason this may be of interest to the DOJ, and the current administration, is that the circuit courts are currently split on this topic with the Seventh Circuit holding that sexual orientation discrimination is a form of sex discrimination and the Eleventh Circuit holding the opposite. The Second Circuit may be the next to weigh in on the legal debate with the Zarda case. After that, other circuits may hear similar questions of law unless and until the Supreme Court hears and settles the issue.

To add to the confusion for U.S. employers, the DOJ’s newly-articulated position stands in direct opposition to the stance of the Equal Employment Opportunity Commission (EEOC), which enforces Title VII against private employers. The EEOC’s position is that Title VII does protect sexual orientation in the workplace. The EEOC even filed its own amicus brief a month before the DOJ filed its brief in the Zarda case, arguing that sexual orientation discrimination claims from employees “fall squarely within Title VII’s prohibition against discrimination on the basis of sex.”

What is an employer to do when the DOJ, which enforces the laws of the U.S., says employers may discriminate on the basis of sexual orientation, and the EEOC, which enforces the anti-discrimination laws of the U.S., says employers may not discriminate on the basis of sexual orientation? The answer is that all of the arguments made in the Zarda case are just argument. They are not recitations of new law. The Second Circuit will make its decision on Zarda independent of the DOJ and the EEOC. Although it is important to keep an eye on changing policies in the EEOC and DOJ, it is equally important to know the laws of your jurisdiction. Almost half of all states and many counties and municipalities prohibit discrimination on the basis of sexual orientation. So, even if employers are in a jurisdiction where federal law is not interpreted as a bar to sexual orientation discrimination under Title VII, the employer may still face litigation and liability under state or local law. With that said, the EEOC’s stance on the issue is relevant to private employers since the EEOC enforces Title VII. Employers should watch to see if the EEOC falls in line with the DOJ’s position after the Trump administration’s selection of Janet Dhillon is confirmed, and she takes her place as the new chair of the EEOC.

Littler attorneys are available for consultation on the employment discrimination laws across the country and will keep employers updated on the latest Title VII news.