(Photo: Diego M. Radzinschi/NLJ.)
The U.S. Supreme Court should resolve questions about the scope of sexual orientation protection in the workplace, the acting chairwoman of the U.S. Equal Employment Opportunity Commission said Wednesday.
Victoria Lipnic, an Obama-era appointee and Republican member of the commission, has not advocated abandoning the EEOC’s position that sexual orientation should be protected under federal civil rights law.
Lipnic acknowledged in her remarks at the Association of Corporate Counsel’s annual meeting in Washington that the EEOC’s position clashes with the U.S. Justice Department under the leadership of Attorney General Jeff Sessions. Main Justice argued opposite the EEOC in an LGBT workplace rights case in the U.S. Court of Appeals for the Second Circuit.
The EEOC has pushed for sexual orientation and transgender protections in the workplace since first issuing guidance in 2013. The Justice Department submitted an amicus brief in the Second Circuit case, Zarda v. Altitude Express, that said sexual orientation discrimination is not protected under the Civil Rights Act of 1964. The EEOC had previously issued a brief arguing the opposite opinion in that case.
“It is certainly an unusual position for the federal government to have these different interpretations,” Lipnic said.
Lipnic would not speculate how the EEOC, moving forward in the Trump administration, will resolve questions about LGBT workplace protections. The agency is poised to have a Republican majority with nominees Janet Dhillon and Daniel Gade.
The nominees—Dhillon was picked for EEOC chair—are expected to be confirmed by the U.S. Senate. They were questioned about sexual orientation protection at their confirmation hearings but did not stake out firm positions.
The spat between the EEOC and the Justice Department could soon play out in a pending case in the Supreme Court. The justices have a pending petition that asks the court to take up a case from the U.S. Court of Appeals for the Eleventh Circuit, Evans v. Georgia Regional Hospital, where a former Savannah security guard claimed she was fired because she is a lesbian. The court ruled for Georgia Regional Hospital.
In the Supreme Court, more than 70 big-name companies urged the justices to take up the case and argued that sexual orientation should be recognized under civil rights law. Neither the Justice Department nor the EEOC has filed a brief in the Supreme Court in this case. The EEOC filed a brief in the appeals court backing broad workplace LGBT protections.
The EEOC only files amicus briefs after a vote, and there’s no certainty the commission will vote to file an amicus brief in the Supreme Court case.
Lipnic pointed out that the U.S. solicitor general speaks for the government and will likely espouse the views the Justice Department filed in the Zarda case in the Second Circuit.
“I think it’s pretty clear and certainly the case that if the Supreme Court takes up the issue, the position of the Justice Department would reflect that brief,” Lipnic said.
The Senate Health, Education, Labor and Pensions Committee was set to vote Wednesday on whether to confirm several top jobs in the labor realm, including Dhillon and Gade.
Other pressing issues will face the commission under the likely new leadership, including a requirement that the Office of Management and Budget scuttled to require companies to file comprehensive pay data and how to address a backlog of cases the EEOC must investigate, Lipnic said. She said she did not think the solution presented by requiring more data in the EEO-1 form would address the gender pay gap and there would be other opportunities to tackle that issue. She also said the EEOC would have to wait from a federal judge about a case it lost involving wellness rules after it was sued by the AARP earlier this year.
Lipnic said under the Trump administration, there will be a focus on addressing the backlog of cases before the commission. The 184 lawsuits last fiscal year, which ended in September, was a significantly higher number than the 86 lawsuits the commission took on in federal court during the last year of the Obama administration, she said. She said on average the commission takes on about 120 to 130 cases each year.
Of the 184 suits, only 30 were systemic investigations, something the previous commission took on to address nationwide civil rights violations among private employers.
“I think you’ll see more narrowly tailored cases,” she said. “My view has been for quite some time that if the EEOC is interested in addressing a systemic problem, litigating narrowly on a geographic basis will have the same impact as us trying to take everything on on a nationwide basis.”