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Justice Department Argues Sexual Orientation Not Protected By Civil Rights Laws

Jul 28, 2017
Originally published on August 9, 2017 6:29 pm
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These two statements came on the same day. President Trump declared that he would ban transgender troops from serving in the U.S. military. And - the Justice Department took a position that sexual orientation is not protected under civil rights law. The Justice Department argument came in a friend-of-the-court filing, as it's called, in a private employment case that otherwise doesn't involve the government. The filing means the Justice Department is taking a different view than another part of the government, the Equal Employment Opportunity Commission. NPR's Yuki Noguchi reports.

YUKI NOGUCHI, BYLINE: The Justice Department filed its brief in the Second Circuit Court of Appeals, arguing the language in civil rights law does not bar discrimination against gay or lesbian workers. David Lopez, former general counsel of the Equal Employment Opportunity Commission, says he was taken aback.

DAVID LOPEZ: The fact that that happened the same day really, I think, raised a lot of consternation in the broader civil rights community.

NOGUCHI: Lopez says, in doing so, the Trump administration is going against the EEOC's 2015 policy as well as a recent ruling by the Seventh Circuit Court of Appeals finding that sexual orientation discrimination is included as part of sex discrimination, which is explicitly illegal.

LOPEZ: In this case, you have two federal agencies taking diametrically opposite views. That's very unusual.

NOGUCHI: Greg Nevins is an attorney for Lambda Legal and has argued many discrimination cases on behalf of gay and lesbian workers. He calls the Justice Department's position a disappointing political development but says the filing did not include much legal substance.

GREG NEVINS: If people were concerned that this is going to be a problem to get around legally, I'm not so concerned about that.

NOGUCHI: Nevin says, although historically courts ruled against gay and lesbian workers, recently, courts have changed their tune.

NEVINS: If your policy is, it's OK for men to date women, but it's not OK for women to date women - game over.

NOGUCHI: The business community, by and large, agrees that sexual orientation discrimination is a civil rights violation. Eric Meyer is a Philadelphia employment attorney representing management.

ERIC MEYER: The vast majority of Fortune 500 companies have internal policies which state that sexual orientation discrimination is against our rules. We don't permit that.

NOGUCHI: In its brief, the Justice Department argues the words sexual orientation do not appear in Title VII of the Civil Rights Act and that, therefore, Congress would have to pass a law including it. Meyer disagrees with that argument.

MEYER: Title VII doesn't say anything about the words hostile work environment. And it's crystal-clear law that you can't create a hostile work environment under Title VII.

NOGUCHI: Even the employer-defendant in the original case doesn't agree with the Justice Department. Attorney Saul Zabell argues his client fired the employee for cause, not because of sexual orientation. He says the case has become a political football.

SAUL ZABELL: I do believe that the Department of Justice is expressing a political view on sexual orientation.

NOGUCHI: One, he adds, he does not agree with.

ZABELL: And it's certainly not lost on me, the proximity of their declaration about transgender individuals in the military. Quite frankly, it bothers me.

NOGUCHI: With so much disagreement, legal experts say the Supreme Court will have to weigh in soon.

Yuki Noguchi, NPR News, Washington.

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