Does federal law protect LGBTQ+ workers from employment discrimination? The question has long been left unsettled for decades, with courts and federal officials increasingly divided.
During the Obama administration, federal courts and the Equal Employment Opportunity Commission (EEOC) determined for the first time that federal law prohibits discrimination on the basis of sexual orientation and gender identity. But now, sources indicate the Justice Department is exerting pressure on the EEOC to reverse the Obama-era stance, revoking support for LGBTQ+ protections.
While the EEOC has advocated for LGBTQ+ employment protections in the last few years, the Justice Department is pressuring the commission to reverse their stance, according to unnamed sources speaking to Bloomberg Law.
The EEOC sued on behalf of a trans woman fired after she informed her employer of her transition, but the DOJ will represent the EEOC before the Supreme Court. That sets up a conflict between the DOJ and EEOC that attorneys for both are now struggling to navigate, according to the Bloomberg report. While they are not required to be in agreement, the DOJ's attempt to roll back protections will likely be subject to greater scrutiny if it conflicts with the EEOC's stance.
The Justice Department is currently led by Attorney General William Barr. Both Barr and his predecessor, Jeff Sessions, are longtime foes of LGBTQ+ equality. Sessions claimed in 2017 that the law should provide no protection to transgender employees, and Barr joined other Republican-nominated attorneys general in praising Sessions' stance.
Despite the pressure from the DOJ, the EEOC is unlikely to change their position. Two of the three current commissioners have already expressed support for LGBTQ+ job protections, with an unnamed source telling Bloomberg Law that Commissioner Victoria Lipnic specifically opposes the DOJ's brief.
The deadline for the DOJ to make their case in writing is tomorrow, August 16. Oral argument is scheduled for October, with a ruling likely before June of 2020 -- just in time for the most arduous months of the presidential election.
Ultimately, though, the Supreme Court may be the ones to resolve this debate. The nation's highest bench has agreed to hear oral argument in a trio of LGBTQ+ employment discrimination cases this fall: Bostock v. Clayton County, Georgia; Altitude Express, Inc. v. Zarda; and R.G. & G.R. Harris Funeral Homes v. EEOC.
The importance of these cases is hard to overstate. Twenty-nine states lack statewide protection for LGBTQ+ folks in the workplace, meaning workers can be fired because of whom they are or whom they love. Should the Supreme Court decide that Title VII also covers sexual orientation and gender identity, it could instantly lead to protection for LGBTQ+ employees across the country, but with Trump picks Neil Gorsuch and Brett Kavanaugh on the court, an outright victory may be unlikely.
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