The U.S. Justice Department’s recent friend-of-the-court brief opposing Title VII coverage of sexual orientation discrimination claims could mark a significant change in the government’s stance on the issue, influence the Supreme Court and hamper employees’ litigation options, employment attorneys say.

The Justice Department in its brief told the appeals court that Congress did not intend Title VII’s ban on sex discrimination to apply to gay workers.

Employment attorneys from a number of firms offered their thoughts on the significance of the Justice Department’s position and how it could affect the future of Title VII litigation.

Shannon D. Farmer, Ballard Spahr

Shannon Farmer, a partner with Ballard Spahr LLP in Philadelphia who represents both public and private employers, noted the unusual step the Justice Department took in submitting its brief to the appeals court.

“The real significance of the filing is the fact that the DOJ went out of its way to file an amicus brief in a case where it had no need to weigh in, to take a position opposite of that taken by the EEOC in this and other cases,” Farmer said in a statement.

The Trump administration’s apparent change from the government’s previous position under President Barack Obama also suggests the EEOC’s position will shift or be overridden by the DOJ, according to Farmer.

She said the change could significantly affect litigation the EEOC has filed on behalf of gay employees if the Justice Department opposes the commission’s position in those cases or forces the EEOC to withdraw.

“The DOJ’s change of position could impact both the Supreme Court’s willingness to weigh in on the issue and the Supreme Court’s ultimate view of the cases, assuming it takes up the issue,” Farmer said.

She noted that LGBT workers can still bring cases under Title VII if they can show they were discriminated against because they did not fit traditional gender stereotypes. The high court has consistently ruled that Title VII bars gender stereotyping of anyone, not only LGBTQ individuals, she said.


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