Greg Somers, an investigator for the Equal Employment Opportunity Commission, has filed a lawsuit over an agency policy requiring employees to investigate and prosecute claims against employers based on allegations of “sexual orientation.”
In 2011, the EEOC, under the Obama administration, issued a policy directive requiring that claims of discrimination on the basis of lesbian, “gay,” bisexual or transgender status be processed as gender discrimination.
Shortly after the memo was issued, Somers requested a religious exemption from being forced to investigate LGBT claims, arguing it violated his sincerely held religious belief that homosexuality, along with adultery and other sexual practices, is a personal choice. Towards the end of last year, after working its way through the federal administrative process, Somers was told his request had been denied.
Somers has since filed a lawsuit against the EEOC alleging his rights are being violated under the First Amendment to the Constitution, the Civil Rights Act of 1964 and the Religious Freedom Restoration Act. The suit also claims that the EEOC policy violates the separation of powers between the legislative and executive branches of government.
“I regret the EEOC’s decision to refuse to accommodate my religious beliefs,” Somers said in a statement announcing the lawsuit. “Tolerance of religious beliefs and freedom of religion are fundamental constitutional rights. No one should have to choose between their lifelong career and their religious beliefs.”
Tim Newton, an attorneys representing Somers, said legislators have made it plain they never intended for sexual orientation to be covered under existing anti-discrimination laws.
“In every Congress since 1994, with the exception of the 109th Congress, the Employment Non-Discrimination Act has been introduced,” Newton explained. “This act, were it to be enacted, would expand the definition of discrimination in employment to include sexual orientation. This is a plain indication that Congress never intended for sexual orientation or gender identity to be covered under title VII’s existing non-discrimination provisions.”
The EEOC acknowledges on its website that federal law does not specifically cover discrimination based on sexual orientation.
In a section titled “Facts about Discrimination in Federal Government Employment Based on Marital Status, Political Affiliation, Status as a Parent, Sexual Orientation, or Transgender (Gender Identity) Status,” the agency says federal laws “prohibit discrimination based on race, color, sex, religion, national origin, age, disability, and genetic information, as well as reprisal for protected activity.”
The EEOC then goes on to admit that it has arbitrarily decided to extend classes listed under the law to include individuals engaged in the “gay” lifestyle as well as transgenders.
“The EEOC has held that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex and therefore is covered under Title VII of the Civil Rights Act of 1964,” the agency says. “The commission has also found that claims by lesbian, gay, and bisexual individuals alleging sex-stereotyping state a sex discrimination claim under Title VII.”
On the group’s “Sex-based discrimination” page, the agency also claims LGBT individuals are permitted to file claims over “adverse actions taken because of the person’s non-conformance with sex stereotypes.”
“Under the Constitution the executive branch is supposed to enforce the law, but is it is supposed to enforce the law as set forth by the legislature which has the responsibility for actually enacting the law,” Newton said. “When that begins to be short-circuited there is a real vulnerability towards arbitrary actions by the government.”
He went on to explain there are several important issues in the case.
“One of them is that the EEOC has refused to accommodate Mr. Somers’ request that he be exempted from these types of cases because they are against his sincerely held religious beliefs. That’s a federal employment law claim,” he said. “Somers is also arguing that the EEOC overstepped its bounds by implementing a policy without authorization from Congress.”
He went on to explain that even if Congress were to enact ENDA, Somers should still be entitled to a religious exemption from investigating LGBT cases.
“There are claims both on statutory and constitutional rights of religious freedom that would allow him to argue that even if ENDA was passed and authorized the EEOC’s actions, it would still violate the rights of religious conscience if people were forced to comply with it against the religious beliefs.”
Newton said if the EEOC is permitted to arbitrarily determine who is a protected class under discrimination law with no legislative oversight, it would have a chilling effect on all employers.
“What’s at issue is the EEOC’s decision to make sexual orientation a protected class so that nobody, regardless of what they believe on the matter, can make any employment determinations based on that. They are essentially forcing people to come in line with a particular ideological view through the coercion of the government.”
He went on to explain that with the push to expand discrimination status to LGBT members, the courts are beginning to find themselves forced to deal with the issue of what to do when different civil rights collide with each other. For instance, if a woman objects to a person who claims to be a woman being in the same restroom with her, what are her civil rights?
“When individual rights collide, I believe the Constitution should do is promote fairness so that on the one hand the government is not arbitrarily and wrongfully denying fundamental rights, but on the other hand that same government is not being used as a tool by one group to essentially cram their views down the throats of another group.”
Newton said rather than deny Somers’ request for an exemption he believes the EEOC should instead be grateful for his being honest about his religious beliefs.
“It seems to make sense that someone who believes that they have been discriminated against by their employer on the base of sexual orientation would want an investigator who was sympathetic with their position,” Newton said. “Rather than deny his exemption request they should attempt to try to find an accommodation. The EEOC should not force an employee to violate their conscience or force them to choose between their faith and their job.”
Jack Minor is a journalist and researcher who served in the United States Marine Corps under President Reagan. Also a former pastor, he has written hundreds of articles and been interviewed about his work on many TV and radio outlets.