DOJ Employees Say They're 'Afraid' After Department Argues in Court Against LGBTQ Protections

A group of employees at the Justice Department is sounding the alarm about tanking morale and fear they could lose their jobs in light of arguments the Trump administration has made in court against federal workplace protections for LGBTQ individuals. 

DOJ Pride, a group that represents LGBTQ employees and their allies at the department, said in a letter to Attorney General William Barr that some employees have expressed “concern, dismay and even distress” about Justice’s position on several ongoing cases. In its letter, the group said employees have reached out to DOJ Pride to say they are “afraid their jobs could be in jeopardy.” Those worries were supported by a survey of its members, the group said. 

The letter was inspired by Justice’s position on three cases currently before the Supreme Court: R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, Bostock v. Clayton County and Altitude Express Inc. v. Zorda, all of which surround whether Title VII of the 1964 Civil Rights Act prevents employees from discriminating in the workplace on the basis of sexual orientation and gender identity. DOJ has argued or submitted briefs supporting a more limited view of the law in all cases, meaning those protections are not provided in statute.

“We recognize that the department was arguing in favor of a particular interpretation of a federal statute, and that it was not advocating that LGBTQ individuals are undeserving or unworthy of protections against discrimination,” DOJ Pride wrote in its letter. “But many of our members did not perceive the department to have made such a distinction.” 

The group’s members expressed concern the department “does not support its LGBTQ workforce” and employees will be less comfortable coming out at work. This could make it more difficult to recruit and retain employees, the members said. They added the positions Justice has taken represent a “set back to the department’s mission of promoting justice, fairness and equality.” The distress among the workforce was severe enough to “raise the alarm with you now,” DOJ Pride told Barr. 

Justice employees were not assuaged by a statement Barr issued earlier this year on the department’s Equal Employment Opportunity policy in which he affirmed “no applicant for employment or employee of our department will be denied equal opportunity” due to sexual orientation or gender identity, in addition to other factors. The positions the department took in the Supreme Court cases left employees “questioning the department’s commitment to them and their commitment to the department.” 

President Clinton first issued an executive order in 1998 to prohibit discrimination in the federal civil service on the basis of sexual orientation. Prior to that, a number of Cold War era policies, including a 1953 executive order issued by President Dwight Eisenhower requiring employees in national security positions to be free of “sexual perversion,” federal agencies removed thousands of LGBT employees.

Last year, the Trump administration removed from the Office of Personnel Management website guidance for all federal agencies to follow regarding transgender employees, and with the deletion implemented new policies for transitioning workers. OPM’s new policy stripped provisions that eased the process for changing gender or names in personnel files, required managers to use the gender pronouns of an employee’s choosing and provided bathroom and locker room access rights. Trump previously rolled back an Obama-era executive order aimed at protecting LGBT federal contractors. President Obama in 2014 also issued an executive order to prohibit discrimination against transgender federal employees.

A majority of states do not have laws explicitly protecting employees from discrimination on the basis of sexual orientation and gender identity. 

DOJ Pride requested Barr issue a statement confirming the department will retain its policy not to discriminate against employees based on sexual orientation or gender identity and that he work with Congress to ensure those protections are provided in statute for all American workers. 

“As you know, the tone you set at the top reverberates far and wide, so we believe that these actions would have a meaningful, positive impact on the morale of the department’s LGBTQ employees, and would reinforce that we are not second-class employees at the Department of Justice,” the group wrote. 

Justice did not respond to questions about the letter in time for publication.