The U.S. Equal Employment Opportunity Commission believes that discrimination based on LGBT status amounts to sex discrimination. Sex discrimination is unlawful under Title VII of the Civil Rights Act of 1964.
However, some recent comments imply that the EEOC’s position on LGBT rights at work may change.
Like, how about a full 180?
Yesterday, the Committee on Senate Health, Education, Labor and Pensions held a hearing to examine the nominations of Janet Dhillon, of Pennsylvania, and Daniel M. Gade, of North Dakota, both to be a Member of the Equal Employment Opportunity Commission.
The EEOC and the DOJ part ways on LGBT rights.
For a while, the EEOC and U.S. Department of Justice appeared to be on the same page on LGBT rights.
And then the DOJ took a heel turn in Zarda v. Altitude Express, Inc.
[For those of you who didn’t grow up on professional wrestling, this is a heel turn].
To boot, the DOJ padded it’s anti-LGBT right position with its showing in Masterpiece Cakeshop v. Civil Rights Commission, the Supreme Court case involving bakers who refused to design a custom cake for a same-sex wedding celebration.
Even so, you’d think that the EEOC, an independent agency, would maintain its pro-LGBT position.
“It sounds wishy-washy…”
Jacquie Lee at Bloomberg Law writes here about a curious exchange at yesterday’s hearing between the nominees and Senators Murray (D-WA), Baldwin (D-WI, and Kaine (D-VA):
Sen. Patty Murray (D-Wash.) asked the nominees if they would support the EEOC’s current position that laws banning sex discrimination in employment include protections for LGBT people. Both said they personally oppose discrimination based on sexual identity and orientation.
Gade said he is committed to enforcing law as “the courts have written.” Dhillon said she thinks a legislative solution is the most appropriate way to address the issue.
“It sounds wishy-washy to me,” Murray said in reference to Dhillon’s answer. Murray added that she appreciated the first part of Dhillon’s response, which mentioned her personal stance against discrimination.
Sen. Tammy Baldwin (D-Wis.) also pressed Dhillon to clarify her stance on protections for LGBT people.
“It’s critical that the federal government ultimately speak with one voice on how this statute is appropriately interpreted,” Dhillon said.
Sen. Tim Kaine (D-Va.) continued Baldwin’s line of questioning. “If someone proposed a vote to scale back the EEOC approach to this type of discrimination, would you support or oppose them?” he asked.
“The courts are wrestling with this statutory interpretation as well,” Dhillon said. “It’s easy to give a quick answer, but the issue is too serious. Ideally a legislative solution could resolve this.”
If you skip to about 28:06 in the audio track, you can listen to the full discussion.
To their credit, let’s underscore that both Gade and Dhillon affirmed that they are personally opposed to discrimination based on gender identity or sexual orientation. And one could read the exchange quoted above as saying that, while codifying the EEOC’s current position would be ideal, the EEOC will continue to view and enforce LGBT rights as it has over the past several years.
Except, how do you explain Ms. Dhillon’s statement that, “It’s easy to give a quick answer, but the issue is too serious?” Ms. Dhillon also noted the split in authority at the appellate court level, the differing positions of the EEOC and DOJ, while wanting to speak with one voice?
It sounds kinda, I dunno, wishy-washy.
But, for now, business at the EEOC is the same as it ever was. And, if you live in a state or locality that has LGBT protections, then that’s the law of your land.