BY CHRIS JOHNSON, WASHINGTON BLADE
President Trump’s nominees for the U.S. Equal Employment Opportunity Commission during recent congressional testimony — described by one Democratic senator as “wishy-washy” — signaled they may reverse the agency’s position that current federal law against sex discrimination applies to LGBT people.
Under questioning during their confirmation hearing on Tuesday, both nominees — Janet Dhillon, Trump’s choice to become the next chair of the commission, and Daniel Gade, Trump’s choice to fill a vacancy — were non-committal about upholding EEOC’s determinations Title VII of the Civil Rights Act of 1964 forbids discrimination against LGBT workers.
In fact, Dhillon, general counsel of Burlington Stores and former general counsel for the retailer J.C. Penney, seemed ready to overturn findings of LGBT protections on the basis the U.S. government should speak with one voice on the issue.
Dhillon first expressed a lack of commitment to upholding the determination Title VII applies to LGBT workers under questioning from Sen. Patty Murray (D-Wash.), the top Democrat on the Senate Health, Education, Labor & Pensions Committee, although the nominee said she’s “personally opposed” to anti-LGBT discrimination.
“As chair of the EEOC on this issue, I would be one of five votes,” Dhillon said. “What I can commit to you is a very careful review and careful consultation with the career professional staff at the agency who have been working on this issue.”
Dhillon pointed out the split among circuit courts on the issue with regard to sexual orientation and differing views among U.S. agencies, prompting Murray to interject as her time expired the response “sounds wishy-washy to me.”
Gade, who served in the George W. Bush administration on veterans’ issues, military healthcare and U.S. disability policy, was similarly non-committal about upholding protections for LGBT workers under Title VII.
“I’m personally opposed to discrimination on the basis of…sexual orientation or gender identity, and I’m committed to enforcing the law as it’s written and as the court interpreted it,” Gade said.
In 2012, EEOC determined in the case of Macy v. Holder that discrimination on the basis of transgender status amounts to sex discrimination and is unlawful under Title VII — a position later adopted by former U.S. Attorney General Eric Holder during the Obama administration. In 2015, EEOC reached a determination sexual orientation discrimination was unlawful under the same law in the case of Baldwin v. Foxx.
Although the Obama administration never took a position with regard to sexual orientation, the Justice Department upon confirmation of U.S. Attorney General Jeff Sessions came out against gay protections under Title VII in a friend-of-the-court brief filed by the U.S. Second Circuit Court of Appeals.
The Trump administration hasn’t said in so many words transgender people aren’t entitled to workplace protections under Title VII, but that would be consistent with its reasoning for revoking Obama-era guidance assuring transgender kids access to school restrooms consistent with their gender identity under Title IX of the Education Amendments of 1972.
Dhillon more clearly articulated the split between the Justice Department and EEOC and her view the administration should speak with one voice under questioning from Sen. Tammy Baldwin (D-Wis.), who invoked recent stories of a gay worker who won $50,000 in damages and a transgender worker who won $140,000 as a result of EEOC’s intervention.
“The challenge is that…while the EEOC has jurisdiction over the private workforce, and state and local government and federal government, the Department of Justice actually enforces Title VII with respect to state and local government employees,” Dhillon said. “So, I think it’s critical that the federal government ultimately speak with one voice on how this statute is appropriately interpreted.”
If Dhillon were confirmed to the EEOC, the only way she could unify the differing positions of U.S. agencies is by dropping EEOC enforcement of the law to protect LGBT people.
Concluding her response, Dhillon suggested only Congress could compel EEOC to protect LGBT workers, referring to a “legislative solution.”
Baldwin responded by pointing to a portion of Dillon’s opening testimony in which she called filing an employment complaint a “courageous act” and justice delayed is justice denied — a principle the senator said can be doubly true for LGBT workers.
“I only practiced law for a very brief time many years ago, but when I represented individuals who had been discriminated against in the workforce on the basis of sexual orientation, bringing a complaint in and of itself was definitely a courageous act, potentially subjecting them to additional discrimination, and I agree with the point you made in your testimony about the delay,” Baldwin said. “It just strikes me of what you’re saying in terms of waiting to resolve differences is going to impact both of those in the opposite way that you wanted.”
With respect to sexual orientation discrimination, the courts are divided on whether Title VII protects lesbian, gay and bisexual people. The U.S. Seventh Circuit Court of Appeals has ruled the law affords them protections, but the U.S. Eleventh Circuit Court of Appeals has ruled the opposite way. The U.S Second Circuit Court of Appeals is reviewing the issue in “en banc” consideration before the full court.
The issue of whether Title VII applies to transgender people is less controversial among the courts. Four federal appellate courts — the First, Sixth, Ninth and Eleventh circuit courts of appeals — have unanimously determined employment discrimination against transgender people is barred under the law.
But all courts may soon be required to interpret Title VII to apply to lesbian, gay and bisexual people nationwide. A petition filed by the LGBT legal group Lambda Legal is pending before the Supreme Court calling for a nationwide ruling asserting sexual orientation discrimination is illegal under the civil rights law. The petition doesn’t address the issue of gender identity.
Sen. Tim Kaine (D-Va.) also had a hand at asking the nominees about their views on LGBT protections under Title VII. When Kaine asked if they were opposed to LGBT discrimination in principle, they both replied “yes” with one-word responses.
The responses became more complicated when Kaine asked if they would vote to scale back EEOC’s protections for LGBT workers.
“This goes back to what the statutory language actually requires,” Dhillon said. “And the challenge that we face currently is that the EEOC has interpreted the statute in one way and the Department of Justice has interpreted the statute another way in the very same case, which is currently pending before the Second Circuit. There is a split in the circuits. I think the courts are wrestling with this statutory interpretation issue as well.”
Dhillon said the situation requires the parties involved to “come to a solution” without precisely identifying what the solution for LGBT protections under Title VII should be.
“This has real human implications for the people who are impacted, and for their families, and it’s easy to give a quick answer, but the issue is too serious to give an easy, quick answers,” Dhillon added.
Dhillon reiterated her support for a legislative solution and predicted the Supreme Court would ultimately make a determination, but Kaine sought to pin her down on her position until a final determination is reached.
“I think the challenge here is that there are conflicting decisions out of different circuit courts and the EEOC, though, is bound by those decisions because those are federal appellate courts, so the agency is faced with really interpreting the same statute in different ways with regard to geography,” Dhillon replied.
When Kaine asked if Dhillon would enforce Title VII to protect LGBT people in circuits that have found the law applies to LGBT people, the nominee replied, “Oh, yes.” But when asked about circuits that have made no determination, Dhillon said she’d “like to consult with the career professional staff.”
Kaine concluded by saying he’s glad Dhillon acknowledged the human costs of ambiguity of whether federal law protects LGBT people.
“Discrimination is one of the worst things that can happen to somebody,” Kaine said. “Being turned away from a position or a promotion because of a sort of organic thing, who you are, there’s a significant human cost.”
Gade was again non-committal without offering as much detail when Kaine asked the nominee about his views of LGBT protections under Title VII.
“I’m committed to enforcing the law as it’s passed by the Congress and interpreted by the courts, and right now that means different things in different parts of the country, it means different things at different levels of government,” Gade said.
When Kaine asked Gade if he’d enforce LGBT protections in both circuits that have found them as well those that have yet to rule one way or the other, the nominee said he doesn’t plan to make changes.
“As far as I know, there’s no move afoot in the EEOC to reinterpret those guidances,” Gade said. “Unless there’s clear legal reasons for such a move, I’m not going to drive that process myself.”
Janson Wu, executive director of GLBTQ Advocates & Defenders, said he hopes the EEOC nominees, if confirmed, will continue the agency’s practice for advocating for LGBT workers with claims of discrimination.
“It is nonsensical to separate discrimination based upon sexual orientation and gender identity from long standing principles of what sex discrimination means and looks like,” Wu said. “The EEOC has clearly established that LGBT workers are protected under Title VII, and reversing that now would be destabilizing for employees and for employers. We hope and expect that anyone being considered to lead the EEOC clearly articulates their understanding and support for this basic legal principle of fairness and equality.”
Harper Jean Tobin, director of policy for the National Center for Transgender Equality, went further and expressed concern in a statement about the potential confirmation of the nominees.
“We are very concerned that these nominees dodged basic questions about their willingness to follow the EEOC’s established legal positions and enforce our equal employment laws,” Tobin said. “The EEOC has sided with many courts over the last several years in defending the right of millions of LGBTQ Americans not to be fired simply because of who they are. Unless their statements are clarified, it is difficult to conclude that these nominees are qualified to lead the critical work of the EEOC.”
A Democratic aide said the committee is scheduled to vote on the EEOC nominees as early as Wednesday at 10 am, but that vote may be pushed back to Thursday.