Federal government sends mixed messages on Title VII

Disagreement has erupted between the DOJ and EEOC over Title VII protections for LGBT workers.

The issue of whether or not Title VII of the 1964 Civil Rights Act protects employees from discrimination on the basis of their sexual orientation has become a controversial subject in recent years. In fact, as Bloomberg BNA reports, the U.S. Department of Justice and the Equal Employment Opportunity Commission (EEOC), a federal agency tasked with enforcing Title VII, disagree with one another about whether Title VII extends to LGBT employees. While the disagreement does not affect, for the time being, how employee discrimination cases on the basis of sexual orientation are being pursued, it does point to how contentious the issue has become.

Does Title VII cover sexual orientation?

Since 2015, the EEOC has interpreted Title VII as protecting employees from discrimination on the basis of their sexual orientation. While Title VII does not explicitly cover sexual orientation, it does protect employees from discrimination on the basis of their sex. The EEOC reasoned that because sexual orientation can only be defined in reference to sex, that Title VII therefore protected LGBT employees from discrimination and harassment.

That reading of Title VII, however, remains controversial. In a recent case before the U.S. Court of Appeals for the Second Circuit the federal Department of Justice submitted an amicus brief arguing against the position taken by the EEOC. As Fortune reports, the DOJ argues that any effort to amend Title VII should be done by Congress and not by the EEOC.

Does the disagreement matter?

Having two federal government bodies disagree about how an important piece of federal employment legislation should be interpreted is important, although it will have limited effects on how Title VII cases will actually be prosecuted. The head of the EEOC has indicated that even with a Republican majority on the commission, it will continue to pursue Title VII cases on the basis of sexual orientation, something that the DOJ's stance on the matter won't effect.

At the same time, the issue of whether Title VII does apply to sexual orientation is still something of an unresolved legal question. While the full Seventh Circuit court recently agreed that Title VII applies to sexual orientation, a three-judge panel of the Eleventh Circuit took the opposite position, which has created a split in the federal appeals court system on the issue. As a result, the question of whether Title VII applies to sexual orientation will likely have to be settled at some point in the near future by the U.S. Supreme Court.

Employment discrimination

Employment law is constantly evolving, as the above article demonstrates. Those who believe they may have been victims of employment discrimination or harassment should get in touch with an employment law attorney as soon as possible. An experienced attorney can help clients understand what rights they have under the current law and whether they may be able to pursue compensation for their ordeal.