On the one hand, DOJ advances a strong argument that congressional failure to enact legislation explicitly prohibiting sexual orientation discrimination demonstrates that Title VII's prohibition against sex discrimination does not include sexual orientation discrimination. To be sure, congressional failure to enact proposed legislation may offer little guidance about how existing legislation should be interpreted. Not so here. The brief cites over 60 bills that have been introduced, and rejected, since 1974 to prohibit sexual orientation discrimination. Particularly significant is Congress's failure in 1991 to amend Title VII to cover explicitly sexual orientation, despite universal rulings by courts and the EEOC rejecting sexual orientation claims under Title VII. At that same time, however, Congress enacted the Civil Rights Act of 1991, which superseded numerous judicial interpretations of Title VII that Congress deemed to be too narrow. Congressional failure to do the same for claims of sexual orientation discrimination is therefore telling.
On the other hand, DOJ's attempt to undermine the analogy between same-sex and interracial relationships falls flat. Courts have widely recognized that discrimination against an employee because he is married to, or otherwise associated with, an individual of another race violates Title VII because it treats the employee differently because of his own race. For example, firing a white man for being married to a black woman is race discrimination because a black man married to a black woman would not have been fired. By analogy, firing a man because he is married to a man is sex discrimination because a woman married to a man would not have been fired. DOJ tries to distinguish discrimination based on interracial associations by contending that the employer "deems the employee's own race either inferior or superior to the partner's race.” This contention is off the mark because it doesn't matter, insofar as Title VII coverage is concerned, why an employer discriminates against an employee because of race. Moreover, an employer might not view some races as superior or inferior to others, and instead might just object to interracial relationships. In such a case, discrimination based on an interracial relationship is no less race-based than when an employer views races as hierarchical. So too, discrimination based on a same-sex relationship is sex-based.
Of course, there's a lot more to DOJ's brief, but I consider these to be the opposing sides' best arguments, so 'nuff said.
As noted, DOJ's Zarda amicus brief takes the exact opposite position that the EEOC took in its own amicus brief filed on June 23, 2017. Putting the EEOC in its place, DOJ explains:
Although the Equal Employment Opportunity Commission (EEOC) enforces Title VII against private employers . . . and it has filed an amicus brief in support of the employee here, the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.It's not all that unusual for DOJ to adopt a position contrary to the EEOC's, particularly during a Republican administration, so DOJ's position shouldn't have surprised anyone. I still find it odd, though, that two branches of the U.S. government can simultaneously take contrary positions, particularly since DOJ officially represents the "United States." Alas, because the EEOC must obtain DOJ authorization to file a brief with the Supreme Court, the public battle between the EEOC and DOJ is limited to the lower courts.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.