WASHINGTON — On Thursday, the Justice Department took the first step toward backing the view of a federal commission that sexual orientation is a type of sex discrimination barred under existing civil rights law.
In response to a lawsuit filed by a former Federal Aviation Administration employee claiming that he was illegally discriminated against on the basis of his sexual orientation, Justice Department attorneys on Thursday chose to answer his complaint rather than seeking to have it dismissed outright.
In his complaint, filed this past October, David Baldwin alleged that he was discriminated against because of his sexual orientation and that such discrimination was illegal because it is a type of sex discrimination barred by Title VII of the Civil Rights Act of 1964.
Although such claims used to regularly fail, advocates — supported by a growing body of law and the Equal Employment Opportunity Commission — have pressed in recent years for the claims to be revisited and for courts to find that sexual orientation discrimination should be barred as a type of sex discrimination.
"The Justice Department made the correct call by defending this case on the facts rather than making the outdated and conservative legal argument that the Civil Rights Act does not protect gays and lesbians from workplace discrimination," Tico Almeida, the civil rights attorney who founded Freedom to Work, told BuzzFeed News.
Justice Department lawyers had faced a deadline of Thursday to decide whether to answer Baldwin's allegations or file a motion to dismiss them. A motion to dismiss them most likely would have been filed on grounds arguing that Baldwin could not "state a claim" that the FAA violated Title VII because sexual orientation discrimination is not barred by Title VII.
By answering the complaint, the Justice Department bypassed the option of seeking a dismissal on those grounds — in other words, an attempt to toss out the case before the back-and-forth of litigation begins.
This past July, the EEOC — in response to a complaint filed by Baldwin — issued a decision in his favor. The EEOC found that "allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex" that are barred by Title VII.
From there, Baldwin chose to file suit against the FAA in October. In December, the parties agreed to an extension through Thursday for the Justice Department to respond to the lawsuit.
A Justice Department spokesperson did not immediately respond to a request for comment on whether the filing reflected a larger change in the department's view on the issue.
The move comes in the midst of a significant and growing effort from advocates, the EEOC, and others to provide federal protections for LGBT people under existing laws, as new legislative efforts have stalled in Congress.
The EEOC ruled in 2012 that anti-transgender discrimination is covered by the sex discrimination ban in Title VII. The independent agency was later joined by the Justice Department, which announced its agreement with the position in late 2014. Both have since been urging courts to take that position.
On Wednesday, the 4th Circuit Court of Appeals in Richmond, Virginia, heard arguments over the issue of transgender coverage in the context of Title IX's education protections. The Justice Department backed the transgender student, Gavin Grimm, who is suing his school district for alleged sex discrimination.
Until Thursday, however, the Obama administration had not made any public signals as to whether it similarly would join the EEOC in advancing the argument that sexual orientation discrimination should be barred under existing law.
But the Justice Department's move on Thursday — answering the complaint — is such a signal.
Notably, the move comes a year after the Justice Department had opposed Saks Fifth Avenue for having filed a motion to dismiss in an employment discrimination case brought by a former employee of the department store who is transgender.
Saks, initially, had argued that the employee had failed to state a claim in that case, but later withdrew the filing, noting that it would instead "litigat[e] the matter on the merits."
Now it appears, as to Baldwin's claims, that the Justice Department has decided to do the same.