Professional Documents
Culture Documents
PLSC 387E
Title VII of the Civil Rights Act of 1964 vs. the LGBT Community
This essay is going to discuss whether or not Title VII of the Civil Rights Act of 1964
should protect against discrimination based on sexual orientation. Three sides that can be taken
on this topic include first: those of the Trump administration’s nominees for the United States
Equal Employment Opportunity Commission (EEOC), Janet Dhillon and Daniel Gade, second:
those of the Equal Employment Opportunity Commission as it stands right now, and third: of the
Department of Justice (DOJ) under Attorney General Jeff Sessions. These opinions and
concluding actions taken will most definitely result in drastic changes to the interpretation of
discrimination in the workplace, will also result in widespread dissent among and of the Trump
administration, and maybe soon will conclude in a Supreme Court decision. Though, dissent is
already prevalent even before an ultimatum has been reached: two federal agencies (the EEOC
and the DOJ) are split in interpretation of the law. (Note: When I am discussing “LGBT”
workers, I am speaking for everyone in the LGBTQA+ community, just with a shorter acronym.)
Title VII of the Civil Rights Act of 1964 states that “It shall be an unlawful employment
practice for an employer…to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual’s race,
color, religion, sex, or national origin,” (Civil Rights Act, 1964). It was passed under President
Lyndon B. Johnson, and was a prominent civil rights achievement. The Act also created the
Equal Employment Opportunity Commission, a federal agency whose mission today is to be
“responsible for enforcing federal laws that make it illegal to discriminate against a job applicant
or an employee because of the person's race, color, religion, sex (including pregnancy, gender
identity, and sexual orientation), national origin, age (40 or older), disability or genetic
information” (EEOC, 2017). This Act is widely applied everyday to prevent all kinds of
discrimination in the workplace, and is now being questioned for its validity in regards to sexual
orientation. (Note: Sexual orientation is mentioned on the EEOC website, but not in Title VII.)
The United States Department of Justice, a federal executive department, has a similar mission to
that of the EEOC: “to enforce the law and defend the interests of the United States according to
the law;…to seek just punishment for those guilty of unlawful behavior; and to ensure fair and
impartial administration of justice for all Americans,” (Department of Justice, 2017).
One court case, Zarda v. Altitude Express, is prevalent when discussing Title VII in
regards to sexual orientation. In this case, a gay skydiving instructor (Donald Zarda) was fired by
Altitude Express Inc. after revealing his sexual orientation to a customer (Lambda Legal, 2017).
He then filed a discrimination complaint with the EEOC for violating Title VII of the Civil
Rights Act. In 2010, the U.S. District Court for the Eastern District of New York said that the
Act did not protect him (because it does not cover sexual orientation). In January of 2017, there
was an argued appeal for the Second Circuit, but in April, his claim was denied. If the entire
Second Circuit agrees with the arguments placed about Title VII though, a new trial may be held.
In order to discuss the sides to be taken on Title VII, the new EEOC nominees under the
Trump administration must also be discussed: Janet Dhillon and Daniel Gade, as their opinions
are going to be critical in the coming years, especially regarding such a landmark case. Dhillon is
nominated to be the next chair of the EEOC and Gade is nominated to fill a vacancy within the
EEOC (Washington Blade, 25 Sep. 2017). Dhillon is a lawyer and general counsel for Burlington
stores, and Gade is a war veteran who previously worked under George W. Bush’s
The new EEOC nominees, Dhillon and Gade, both have similar ideas of the Title VII of
the Civil Rights Act of 1964 protecting against discrimination based on sexual orientation topic.
Their opinions, in short, are that the Act does not protect against LGBT discrimination, even
though they both personally believe that the LGBT community should not be discriminated
against in the workforce. Dhillon expressed at a U.S. Committee on Health, Education, Labor,
and Pensions hearing that it was more important for the federal government to “speak as one
voice” (Business Insider, 20 Sep. 2017). Gade expressed that he was “committed to enforcing the
law as it’s written and as the court interpreted it”. According to the Washington Blade, Dhillon
would rely on Congress to come up with a solution through the legislative branch in order to
protect LGBT workers. Democratic Senator Patty Murray openly described Dillon’s thoughts
A strength to their argument is that indeed, the federal government should be coming
together and not hold such opposing views on Title VII. Splitting decisions across federal
agencies, the EEOC and the DOJ, are confusing and worrying, especially when it comes to
interpreting such a crucial law. Dhillon made it very clear that she simply wants a unifying
decision - whether it be that the LGBT community can be discriminated against or not. This part
of the argument is prevalent and definitely a needed result of the cases regarding workplace
discrimination.
These aforementioned “wishy-washy” statements made, though, contribute to a large
weakness in Dhillon’s and Gade’s argument: their point of view is not entirely clear. Though
they both have their own more liberal personal views on granting equality in the workplace,
these do not match with what they mention at hearings or in interviews. They both seem
reluctant to release any drastic opinions, or entirely side with the EEOC or the DOJ. Even though
on the EEOC website, it is to be surmised that the commission believes it is illegal for a job
applicant to be discriminated against for their sexual orientation; Dhillon and Gade both have not
publicly declared their motivations to uphold this idea. How can we know what the future
appointees of the EEOC will do for or against the LGBT community? There is no way of the
public knowing, at least with the answers they are currently giving, until they are successfully in
the commission.
The EEOC, as it stands (using its mission statements and previous actions taken under the
Obama administration), argues that Title VII does cover sexual orientation and therefore that the
Act should protect against discrimination against sexual orientation. Previous commissioner for
the EEOC, Jenny Yang, said her greatest achievement was helping Title VII become more
broadly interpreted to encompass sexual orientation and gender identity as well (Business
Insider, 20 Sep. 2017). Though the wording in the original Act is short (the main argument for
this is centered around the definition of “sex”), the law is meant to be adapted to and interpreted
by changes in the society it has to protect as time goes on. Many LGBT-supportive groups
including LGBTQ Advocates & Defenders and the National Center for Transgender Equality
side with the EEOC, worrying that steps in regards to giving protection to the LGBT community
could be taken back by the new nominees Dhillon and Gade, even questioning their credibility to
lead this commission. It is argued that it would be nonsensical to fire employees because of who
they are, and they confirm that the EEOC has continuously fought on the side of LGBT
A strength to the EEOC’s argument is that employees should not be fired because of who
they are. If people can be protected from discrimination against “race, color, religion, sex, or
national origin,” then sexual orientation should fall under this category. To deny a person
employment on basis of who they are, not who they choose to be, it is denying them their basic
individual (American) rights. This idea has been defended in courts since 2002 in lower level
district courts (Newsweek, 28 September 2017). For the Trump administration to alter these
ideals, it would make deliberation on future LGBT cases more confusing and contrasting, with
no clear idea about how the American government treats equality issues in the workplace.
To contrast, a weakness to the EEOC’s argument is that Title VII does not clearly define
“sex”. This term can be applied to sexual orientation, gender identity, or a number of things: but
it also leaves it possible to have a bare-bones interpretation of the law, especially if one goes by
the dictionary definition of the word. If this case does go to the Supreme Court, then there may
be an ultimatum decision on what this term actually is supposed to be interpreted to mean. But as
for now, it can still be argued by the Department of Justice that the Act only protects against
The third side of this topic to cover would be the Department of Justice’s side under Jeff
Sessions, with the idea that Title VII does not protect against discrimination based on sexual
orientation. This side takes a more strict, conservative interpretation of the Civil Rights Act,
being that “sex” is simply defined as whether the person identifies as male or female. This is in
line with the Trump administration’s DOJ, whose actions are observed by Newsweek: “the
department has filed multiple amicus briefs arguing against LGBTQ protections,” (Newsweek, 28
September 2017). Justice Department attorney Hashim Mooppan adds to this argument by
announcing that sexual orientation has not been covered by Title VII in every circuit court for 50
A strength to this argument is the sparse wording of Title VII. When written, the word
“sex” was only used to prevent discrimination against workers simply because of their gender
identity. Only recently is this Act being used to apply to the LGBT community, as seen with the
Zarda case. For years, as Mooppan stated, this addition has not been discussed, so it barely has
authority over sexual orientation. For what it stands for right now and by dictionary definition,
only gender identity is lawfully protected under Title VII, unless Congress specifically words it
A weakness to this argument is idea that the writers of Title VII did not intend for this act
to apply to sexual orientation. We alter a multitude of laws today to apply to modern times that
were not intended for their current use when written, because the original authors could not
predict how future society was going to be. If cases keep reoccurring regarding LGBT workers
being discriminated against in the workplace, then changes must be made to help with this, either
by broadening the interpretation of the word “sex” or by adding words into the Act to clarify. But
simply arguing that the writers of the Act 50 years ago did not mean for this to be applied is a
weak argument, as the federal government does not follow that truthfully with all the other
established laws.
In the future, a set interpretation of Title VII’s wording by the Supreme Court (if this case
reaches past appeals courts) has the potential to either set the LGBT community in America
many steps back, or on the other hand, push the progressive movement and set the country’s
agenda to move forward in acceptance and equality. Either way, an interpretation so critical will
definitely be faced with backlash. Especially if two federal agencies cannot agree, that speaks
volumes for how the country as a whole sees the situation. But a decision such as this one would
establish a more conclusive and less confusing circumstance when it comes to deliberating on
On a smaller scale: due to the non-committal opinions of EEOC nominees Dhillon and
Gade, I am predicting that there is a large chance that when they are in positions of power within
the EEOC, they will allow the Department of Justice to keep their strict interpretation of Title
VII. Though this goes against the EEOC’s mission and will most definitely remove crucial
protections from the LGBT community, their most important want right now seems to be a
unified federal opinion, which giving in will allow. This could cause a large about of distrust in
the EEOC, especially if their fights for equality are not in line with what they are doing with
Title VII. If they give into this fight against discrimination so easily, then what is the real role of
the EEOC?
An alternative situation would be the EEOC (with the new nominees actually in power)
actually following their mission statement and fighting for the LGBT community to legally not
be discriminated against in the workplace. Winning a small notion of accepting “sexual
orientation” as a valid definition of “sex” in this case could open the door to that word’s meaning
in various policies and situations. It would also fall into America’s values of equality and
opportunity for all, not strictly heterosexuals. It has the potential to be a stepping stone in the
direction of acceptance of the LGBT community in America, and federally assert the workplace
Dirksen, Everett. "Title VII of the Civil Rights Act of 1964." Social Policy: Essential Primary
Sources, edited by K. Lee Lerner, et al., Gale, 2006, pp. 239-243. U.S. History in Context,
link.galegroup.com/apps/doc/CX2687400100/UHIC?u=k12_histrc&xid=8cc67cdd. Accessed 2
Oct. 2017.
Johnson, Chris. “Trump’s EEOC nominees ‘wishy-washy’ on LGBT workplace rights.”
http://www.washingtonblade.com/2017/09/25/trumps-eeoc-nominees-wishy-washy-on-lgbt-work
Smith, Allen. “In Focus: EEOC, DOJ Face Off Over Sexual Orientation Discrimination.” Society
https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/In-Foc
Larson, Erik. “Trump Administration Says Bias Rules Don't Cover Gay Workers.” Bloomberg
Barbash, Fred. “Trump administration, intervening in major LGBT case, says job bias law does
not cover sexual orientation.” The Washington Post, 27 July 2017,
https://www.washingtonpost.com/news/morning-mix/wp/2017/07/27/trump-administration-inter
vening-in-major-lgbt-case-says-job-bias-law-does-not-cover-sexual-orientation/?utm_term=.9b8
Riotta, Chris. “Trump Administration Says Employers Can Fire People for Being Gay.”
http://www.newsweek.com/trump-doj-fired-being-gay-lgbt-issues-jeff-sessions-673398.
Cain, Aine. “Trump's nominees cast doubt on the future of employment protections for LGBT
September 2017.