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Civil Rights Rift at Trump Agencies Forces Employer Reckoning (2)

Aug. 20, 2019, 10:00 AM; Updated: Aug. 23, 2019, 3:07 PM

A rift between the Justice Department and the U.S. Equal Employment Opportunity Commission over discrimination cases—a rare occurrence, now increasingly common in the Trump era—is forcing companies to reckon with the ideological divide to comply with federal civil rights laws.

The EEOC’s position on workplace bias issues has clashed with the Trump administration’s pro-management stance in litigation, including over LGBT protections, disability discrimination, and criminal background hiring guidance.

As the agencies diverge, employers should follow the agency with the most restrictive stance to remain in compliance, attorneys and academics say. The political tension could prove largely symbolic, but it also spotlights the agencies’ priorities.

“These public, bitter divides between the EEOC and DOJ are exceedingly rare,” said Anthony Kreis, a visiting professor at the Chicago-Kent College of Law. “Ultimately the courts will decide who is right and who is wrong. That doesn’t minimize the significance of the political ramifications in the openly divisive contest between the two. It’s more of a political question than a legal one.”

The EEOC enforces anti-discrimination laws against a wide range of employers, and the DOJ can bring bias cases against state and local government employers. But before the U.S. Supreme Court, the Justice Department represents the EEOC, which can crystallize their split—as it did in a trio of cases involving LGBT job protections that the justices will consider in October. The EEOC says sexual orientation and gender identity discrimination are currently prohibited, while the Justice Department says they’re not.

Practically speaking, when one agency has a more restrictive interpretation of the law than another, it’s a best practice to comply with the stricter interpretation, said James Paretti, a partner with management-side law firm Littler Mendelson.

“Employers should be mindful of the impact of the regulatory agency that enforces the law,” said Paretti, a former EEOC attorney. “Employers should know the position of the agency that processes these charges and may ultimately bring litigation. I would not rely on the Justice Department’s position as a get out of jail free card.”

Other attorneys say that although it would be easier if the agencies were on the same side, the divide won’t have a direct impact on employers. Paul Patten, a management attorney with Jackson Lewis in Chicago, said many employers are already following stricter discrimination standards, including those supported by the EEOC, because of state laws.

But he added that courts have the ultimate say, not the agencies. Any power the government might have had to persuade judges to adopt its position likely sinks to zero when there is a divide, he said.

The DOJ declined to comment.

The EEOC declined to comment on the pending cases but said in a statement: “We value our relationship with the Department of Justice and look forward to continuing to work with them to enforce the laws that prohibit employment discrimination and create equal opportunity.”

‘Out of the Lanes’

A former EEOC general counsel called the divide in at least two cases—on LGBT protections and disability discrimination—before the high court “extraordinary” and “out of the lanes” of normal procedure.

“It’s the Solicitor General’s call what position the United States of America takes in the Supreme Court,” said Ronald Cooper, former EEOC general counsel under President George W. Bush. “The SG’s got all of the cards.”

The DOJ filed a response on Aug. 16 to the Supreme Court, cementing its stance against EEOC’s win in an appeals court battle on behalf of a former funeral director who is transgender. The Justice Department argued Aimee Stephens shouldn’t be able to sue her employer for discrimination under Title VII of the 1964 Civil Rights Act.

In October, the court will hear arguments in R.G & G.R. Harris Funeral v. EEOC that considers Title VII protections for gender identity, along with two similar cases that consider sexual orientation protections.

Justice Department attorneys also recently told the justices not to review a case the EEOC won in the U.S. Court of Appeals for the Ninth Circuit over the scope of disability discrimination. The EEOC argued on behalf of a job applicant who said BNSF Railway Co. violated the Americans with Disabilities Act when it rescinded a job offer because he refused to pay for a required MRI.

In that case, several large industry groups asked the court to overturn the decision in favor of the worker. The ADA isn’t typically a partisan statute, and the case shows that the Trump administration will take a business-friendly position, said David Lopez, the EEOC’s Obama-era general counsel and co-dean of Rutgers Law School.

Separately, in the Fifth Circuit, the Justice Department told the appeals court that it disagreed with guidance proposed by the EEOC that warns employers about how blanket prohibitions on hiring workers with criminal records can be discriminatory.

Tensions Not New

The tensions between the EEOC and the DOJ aren’t entirely new. The two agencies have split on issues through several administrations, but not typically with the same frequency as in the current administration, legal observers say. But even with the current split, more communication between the EEOC and the DOJ is occurring, an agency staff member with direct knowledge of the situation told Bloomberg Law.

During the Reagan administration, there were a series of cases in which the agencies found themselves at loggerheads over affirmative action, sex discrimination, and racial quotas, said Sam Bagenstos, professor of law at the University of Michigan. The cases included Williams v. City of New Orleans, which played out in the Fifth Circuit in 1984, and Sheet Metal Workers v. EEOC, where the Justice Department flipped on the EEOC’s argument that had prevailed in the Second Circuit.

“In the current cases and the others, the Supreme Court will resolve the issue and whatever uncertainty there is will be solved by the end of next term,” Bagenstos said. “I think it’s just inherent in having a government that has multiple officers that have different statutory goals.”

The EEOC is a quasi-independent agency that has bipartisan members with staggered terms, so it will never be a pure reflection of an administration’s ideology. By contrast, the Justice Department is a Cabinet-level agency composed of political appointees who enforce an administration’s positions.

“It’s not a great look for the DOJ and the EEOC to take such diverging views on such a fundamentally important point of law,” Chicago-Kent’s Kreis said. “That’s doubly true when the issue is one that is publicly salient and may engender resistance in voters in an election year.”

(Adds comment from David Lopez, the EEOC's Obama-era general counsel.)

To contact the reporters on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com; Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editor responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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