The U.S. Equal Employment Opportunity Commission on Thursday renewed its push for sexual orientation workplace protections, urging a federal appeals court to embrace rulings that expanded anti-discrimination safeguards for LGBT employees.

The EEOC filed a new friend-of-the-court brief in the U.S. Court of Appeals for the Eighth Circuit, where a health care sales specialist claims a St. Louis-based Midwest Geriatric Management withdrew a job offer after learning he was gay.

The agency has been a leader in arguing that sexual orientation should be protected under Title VII of the Civil Rights Act. The commission previously argued for this interpretation successfully in the Seventh and Second Circuits. The Second Circuit, sitting en banc last month, adopted the EEOC's position. A three-judge panel in the Eleventh Circuit ruled against the EEOC's position.

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The Second Circuit's decision in Zarda v. Altitude Express, featured prominently in the EEOC's amicus brief in the Eighth Circuit. The EEOC's brief quotes from the Zarda decision: “The employer's failure to reference gender directly does not change the fact that a 'gay' employee is simply a man who is attracted to men.”

The Second Circuit, the EEOC said in its new brief, held that the relevant inquiry was not whether the employer also would have fired a lesbian but whether the employer would have fired a woman who was attracted to men.

The EEOC has argued, along with gay rights advocates, in recent years that sexual orientation should be considered sex under Title VII. Sex discrimination has evolved over the decades to include gender-based discrimination and sex stereotyping, and several circuits have also recognized gender identity.

Between January  2013, when the EEOC began tracking data, to September 2017, the agency received 5,822 charges of sexual orientation discrimination against private sector employers, labor organizations or local governments. Last year alone, there were 1,522 such charges.

The EEOC's new brief, posted below, sets the stage for another potential clash with the U.S. Justice Department, which argued against the agency's stance in the Second Circuit.

Whether and how long the EEOC advances support for sexual orientation protection could be determined by the confirmation of President Donald Trump's two nominees to the board. Trump nominated former Burlington Stores General Gounsel Janet Dhillon as chair and West Point professor Daniel Gade as a commission member. Both nominations are pending.

The Second Circuit decision followed a ruling in the Seventh Circuit last year that said federal civil rights laws protect sexual orientation.

EEOC Chair Victoria Lipnic called the Second Circuit ruling a “generous view of the law of employment protections, and a needed one.”

The firm Mathis, Marifian & Richter represents Matthew Horton, the challenger in the Eighth Circuit case. Lambda Legal joined the case in the appeal to the Eighth Circuit.

“We have taken huge strides in ensuring that federal courts across the country recognize that sexual orientation discrimination is a form of sex discrimination prohibited by federal law,” said Greg Nevins, employment fairness project director for Lambda Legal. “Thanks to the landmark decisions by the Second and Seventh Circuits, we have the wind on our backs and progress toward the correct understanding that the Civil Rights Act covers LGBT workers now is as inexorable as it is inevitable.”

 

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