Less than two and a half years ago, the federal government and courts generally agreed that Title VII did not prohibit discrimination on the basis of sexual orientation. But that consensus is no longer; within the last six months, a split among federal courts and within the federal executive branch has developed.
On July 15, 2015, the Equal Employment Opportunity Commission (EEOC) issued a federal sector decision holding that “sexual orientation is, by its very nature, discrimination because of sex.” This position was contrary to the overwhelming precedent of federal courts of appeals. But recently, one federal appellate court agreed with the EEOC. In Hively v. Ivy Tech Community College of Indiana,the entire Seventh Circuit, in April 2017, reconsidered its precedent, and held that “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.” As the Seventh Circuit acknowledged, that decision followed several federal district court opinions that had recently reached the same conclusion. On the other hand, in Evans v. Georgia Regional Hospital,in March 2017 the Eleventh Circuit reaffirmed its previous holding that sex discrimination does not include sexual orientation discrimination under Title VII and cited opinions from all of the other circuits (except D.C.) holding the same.
Just last month, the Department of Justice (DOJ) entered the dispute. In Zarda v. Altitude Express, Inc. d/b/a Skydive Long Island, the entire Second Circuit agreed to reconsider a panel’s affirmance of a lower court decision dismissing claims alleging sexual orientation discrimination under Title VII. In that case, the EEOC filed an amicus brief advocating its now well-known position. But in that same case, the DOJ filed an amicus brief arguing the exact opposite position. In its brief, the DOJ argued “Title VII does not reach discrimination based on sexual orientation.” So as the Second Circuit weighs in, two departments of the federal government are at complete odds, and the federal appellate courts are now split. When navigating this uncertain landscape, it is important to remember what role these three entities—federal appellate courts, the EEOC, and the DOJ—play in the enforcement of Title VII in the private sector.
As the DOJ noted in its brief to the Second Circuit, “[t]he United States, through the Attorney General, enforces Title VII against state or local government employers.” Therefore, the DOJ’s position that sexual orientation discrimination is not prohibited under Title VII likely has little impact on anyone other than state and local governments. In the public arena, it is unlikely that the DOJ will file a lawsuit alleging sexual orientation discrimination any time soon. But for private employers, this position will likely have little consequence unless other agencies or federal circuits choose to follow its lead.
On the other hand, the EEOC is Title VII’s primary enforcer in the private sector, especially in states without employment discrimination laws. Employees must file a charge with the EEOC before they can file a lawsuit under the statute. The EEOC investigates, mediates, and issues findings on all claims. Therefore, because the EEOC has taken the position that sexual orientation discrimination is prohibited under Title VII, if there is evidence of such discrimination, the EEOC is likely to find there is cause for the employee to file a lawsuit. In addition, under Title VII, the EEOC can sue private employers under the Act. In fact, in 2016, the EEOC filed two lawsuits alleging sexual orientation discrimination against private employers—one in Pennsylvania and one in Maryland.
Despite the authority of these two conflicting federal entities, it is worth noting that neither the EEOC’s position nor the DOJ’s position is entitled to any deference by the federal courts. Therefore, the Second Circuit will be free to decide the case either way, even though it may look to the amicus briefs for persuasive guidance.
Finally, federal appellate court decisions bind trial court decisions in their jurisdiction. This means that in the Seventh Circuit—Wisconsin, Illinois, and Indiana—lower courts must allow sexual orientation discrimination cases to proceed under the Act. Alternatively, in the other circuits that have held sexual orientation discrimination is not actionable, one would think a case alleging sexual orientation discrimination would likely be dismissed in federal court. However, one lesson to learn from the Seventh Circuit’s recent about-face is that federal courts constantly reinterpret Title VII, and a dismissal is not guaranteed.
Three possible occurrences could provide some clarity. First, the EEOC could change the position it has maintained for two years to match the DOJ’s position. This is possible given the recent nomination of a new EEOC chair, Janet Dhillon. Second, with the recent circuit split and the federal government’s contradicting opinions, the Second Circuit’s en banc case will likely give the Supreme Court the opportunity to weigh in. Finally, Congress could amend the statute, but given the federal government’s inconsistent positions, that is unlikely.
As the current administration takes action in ways that signal a sea change from its predecessor, it is important to remember that until the legislative branch acts, the judicial branch is ultimately the final arbiter of Title VII in the private sector. It is also important to remember that many states and municipalities have anti-discrimination statutes that may trump this federal law. In fact, at least 20 states and the District of Columbia currently prohibit discrimination on the basis of sexual orientation.