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Justice Department argues sexual orientation discrimination not covered by Civil Rights Act

published in The Oklahoman | August 2, 2017
Nathan Whatley
Nathan Whatley


In late July 2017, the U.S. Department of Justice filed an amicus brief in a federal court case in which it argued that Title VII of the Civil Rights Act does not cover discrimination on the basis of one’s sexual orientation, and that any efforts to amend Title VII should be directed to Congress and not the courts.

In a Q&A with The Oklahoman, labor and employment attorney Nathan Whatley said that while the Justice Department’s current position is consistent with most federal court decisions on the same issue, it is at odds with its own Obama-era position and with the Equal Employment Opportunity Commission’s most recent stance.

Despite the DOJ’s change in position, Whatley believes it does little to change the overall legal landscape for employers – not only because many states and municipalities already specifically ban discrimination on the basis of sexual orientation, but also because such discriminatory behavior is likely to lead to a lawsuit.

“Moreover, even if the courts don’t agree with the EEOC’s position, most courts do agreee that discrimination based on gender stereotyping is prohibited, so an aggrieved employee may bring a stereotyping claims rather than a claim based on direct discrimination against his or her sexual orientation.”