Eugene Scalia Eugene Scalia testifies before the Senate Health, Education, Labor, and Pensions Committee during his confirmation hearing. Credit: Diego M. Radzinschi / ALM

Updated 1:57 p.m.

Gibson, Dunn & Crutcher partner Eugene Scalia told senators at his confirmation hearing Thursday for U.S. labor secretary that he believed it is "wrong" for an employer to fire a worker because of sexual orientation or gender identity.

"I think that most of my clients had policies against that. Certainly, my firm did," said Scalia, a leading regulatory partner at Gibson Dunn and a former George W. Bush-era solicitor at the Labor Department. "It's something that would not have been tolerated by me or my firm or most of my clients."

Scalia, however, did not answer directly on whether Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against workers because of sexual orientation or transgender status. The U.S. Supreme Court will confront that dispute in three cases to be argued next month.

"We'll see what the court decides," Scalia told the Senate Committee on Health, Education, Labor and Pensions. Congress and the states, he added, could take up legislation affecting the scope of protections against workplace discrimination in the wake of the Supreme Court's decision on the issue.

Scalia was pressed several times by Senate Democrats on the committee about a 1985 college article suggesting the LGBTQ lifestyle should not be treated as equally acceptable as other family lifestyles.

Democratic Sen. Chris Murphy of Connecticut said the college article "trivialized the issues behind gay rights." Murphy also noted Scalia recently joined the board of the Ethics and Public Policy Center, an organization he said advocates against LGBTQ civil rights.

"Yes, I certainly have changed in how I view any number of things since I was in college. I think we've all matured—one would hope—since those days. I would certainly enforce the law in this area and respect the decisions of the Supreme Court," Scalia, who attended the University of Virginia as an undergraduate, told senators.

Scalia said at one point: "I wouldn't write those words today. I now have friends and colleagues to whom they would cause pain. I would not want to do that." He also said the Ethics and Public Policy organization is a respected organization and joining its board "says nothing about what my views are on any number of things." Scalia said in an ethics agreement that he would resign, on his confirmation, from the Ethics and Public Policy Center.

Scalia's personal views on LGBT rights appear to be in tension with the legal position taken in the three Supreme Court cases by the Trump administration's Justice Department.

The Justice Department is arguing that Title VII's ban on discrimination because of sex does not include sexual orientation or gender identity. The Equal Employment Opportunity Commission has concluded it does, and the agency did not sign the Justice Department's recent filing in the Supreme Court.

"With respect to the cases that are now in the Supreme Court, the Justice Department has taken one position. I don't know currently what position is being staked out by the EEOC, but I don't believe the Department of Labor has been called to present its views because it's not a statute administered by the department," Scalia said. He added: "Prejudice is abhorrent. It's not something I've tolerated that in my workplace."

Scalia pushed back on suggestions from Democrats that as a longtime corporate lawyer—he formerly led the labor team at Gibson Dunn—he would automatically disfavor the rights of workers. He said that his defense of corporate clients does not necessarily mean he personally believed in their cause.

He also said there was much of his work at Gibson Dunn that was behind the scenes. "I have advised clients to fire, or take other serious action, against executives and other managers who in my judgment engaged in harassment or other misconduct," Scalia said in his opening statement. "I have been direct and forceful in telling clients to take steps that, sometimes, they wished they did not have to."

The Senate committee is expected to vote next Tuesday on Scalia's nomination.

 

Read more:

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Correction: An earlier version of this report misattributed a statement to Sen. Patty Murray. That statement was made by Sen. Chris Murphy.