July 28, 2017

NYLAG is disappointed in the Department of Justice’s (DOJ) decision to file a brief in the 7th Circuit Court of Appeals stating that LGBTQ employees are not protected under federal employment law prohibiting sex discrimination. DOJ’s position is in stark contrast with that of the Equal Employment Opportunity Commission (EEOC), which the DOJ claims does not reflect the federal government’s views, despite the fact that the EEOC is specifically tasked with handling federal employment law cases. Since 2012, the EEOC has pushed to expand the interpretation of Title VII’s prohibition against discrimination on the basis of “sex” to protect LGBTQ individuals, reasoning, for example, that it would not be rational  to permit employers to fire a female employee seen kissing her girlfriend when the same woman would not have been fired if seen kissing a man. Many courts, including the Seventh Circuit, are increasingly agreeing with this rationale. Meanwhile, state and local governments are moving towards providing more explicit protections; for example, New York City Human Rights Law, protects employees from sex discrimination as well as discrimination on the basis of sexual orientation, gender identity, and gender expression. The DOJ is unnecessarily interjecting itself into a case where even the defendants do not share the DOJ’s interpretation of sex discrimination.  Its position is both contrary to courts’ evolving understanding of Title VII and a hurtful imposition into a case in which DOJ is not a party.