‘Should Dishwashers Be Fired ‘Cause They’re Gay?’ The Nominee to Lead DOJ’s Civil Rights Division Can’t Answer

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‘Should Dishwashers Be Fired ‘Cause They’re Gay?’ The Nominee to Lead DOJ’s Civil Rights Division Can’t Answer

Sofia Resnick

Eric Dreiband said he'd be "zealous" in protecting civil rights, but he's got a history of defending employers accused of workplace bias.

Under oath Wednesday, Eric S. Dreiband—whom President Donald Trump has nominated to head the U.S. Department of Justice’s Civil Rights Division—refused to tell the Senate Judiciary Committee whether or not the U.S. Constitution permits discrimination against LGBTQ people in the workplace or in schools.

A onetime general counsel of the Equal Employment Opportunity Commission (EEOC), Dreiband faces intense criticism from civil rights advocates and Democrats in Congress for his more recent work at the law firm Jones Day, where, as a partner, he has represented companies accused of varying types of employment discrimination.

But during his confirmation hearing Wednesday, Dreiband recounted an anecdote about a deaf dishwasher, in response to a question from Sen. Ted Cruz (R-TX) about his tenure on the EEOC during President George W. Bush’s administration.

“There was a matter that came out of our St. Louis office when I served as general counsel of the EEOC,” Dreiband began. “It involved a case of an individual who was totally deaf. He applied to work as a low-wage dishwasher at a fast-food restaurant in that area. The manager of the restaurant told him that he would not hire him, and he would not hire him because he was deaf. Blatant disability discrimination.”

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Dreiband went on to explain that he sent the case to the EEOC commissioners to vote on, and two of them were skeptical of the dishwasher’s story. As Dreiband tells it, he insisted the commissioners take a closer look, and they ended up taking the case, suing the fast-food restaurant and winning the dishwasher about $25,000.

“While that case did not set any precedent—it wasn’t particularly novel in any legal sense—it was particularly important to me, and it’s something I’m particularly proud of: that the United States government was able to seek relief for that individual and to send a message to the public that that kind of blatant discrimination will not be tolerated,” Dreiband said.

Dreiband used the word “zealous” multiple times to describe the type of enforcement he would apply to civil rights laws if he is confirmed to lead the Civil Rights Division, the section of the DOJ in charge of enforcing them.

But when asked specifically if he will protect people in the United States from employment discrimination based on their sexual orientation or gender identity—something Attorney General Jeff Sessions’ DOJ has asserted the Constitution is not designed to protect against—Dreiband gave no such assurance.

“Go back to your story about the deaf dishwasher,” Sen. Sheldon Whitehouse (D-RI) said to Dreiband later in the hearing. “Remove his deafness. Insert, instead of being deaf, that this individual is gay. Does he get treated the same way by you under the Civil Rights Division?”

“Well, it depends on the law,” Dreiband responded. “If you’re asking about Title VII of the Civil Rights Act of 1964, and the sex-discrimination prohibitions in that law, that is a matter that is currently in litigation and pending before the United States Court of Appeals for the Second Circuit. … And I think it would be inappropriate for me to comment any further and will [wait] to see what the Court of Appeals does.”

As Dreiband noted, the question of whether sexual orientation and gender identity can be considered a form of sex discrimination under the Civil Rights Act has not yet been decided in the courts. The Obama administration took the position that under Title VII, it should be illegal to fire or neglect to hire someone just because they are LGBTQ. The EEOC ruled thusly in 2015. But in a striking about-face, last month, the DOJ filed an amicus brief reversing this position.

Not satisfied with Dreiband’s response, Whitehouse probed further.

“So, what do you think about that, just as a person?” he asked Dreiband. “Should dishwashers be fired ’cause they’re gay?”

“I think everyone should be treated with respect and treated without regard to any trait unrelated to their work,” Dreiband replied.

Dreiband has not publicly taken a position on what exactly discrimination “because of sex” means under Title VII. However, in 2015, he co-authored a white paper on behalf of Jones Day titled “The Evolution of Title VII—Sexual Orientation, Gender Identity, and the Civil Rights Act of 1964,” which lays out recent EEOC decisions validating claims of discrimination based on gender identity and sexual orientation, without stating a position on the issue. Notably, the paper refers repeatedly to “homosexuals,” an outdated term considered by many to be pejorative.

Sen. Chris Coons (D-DE) asked Dreiband whether transgender students are protected from discrimination based on their gender identity under Title IX of the Education Amendments of 1972. This issue came to the national forefront when schools began barring trans students from using bathrooms or locker rooms consistent with their gender identities. The Obama administration took the position that Title IX protects trans students, a position Sessions reversed shortly after becoming attorney general. Notably, when the DOJ sued the University of North Carolina over this matter last year, Dreiband represented the school’s defense on behalf of his law firm, Jones Day. The DOJ withdrew its claim against the university earlier this year.

Dreiband told Coons that, if nominated, he would recuse himself from any matters related to the North Carolina case. Coons point-blank asked Dreiband,”Does Title IX protect transgender students?”

He wouldn’t clearly answer.

“I certainly think protections for individuals against discrimination, including sex discrimination, and in cases like the Shepard Byrd Hate Crimes Act—that protects against hate crimes because of gender identity status—are very, very important,” he said.

Dreiband has many supporters, among them employment-discrimination and civil rights attorneys with varying political views, who attest to his integrity and professionalism. But many civil rights groups, especially those working for LGBTQ advocacy, worry Dreiband’s record signals he will continue to advance—rather than push back on—the DOJ’s current pattern rejecting the existence of constitutional protections for LGBTQ people in the United States.

“The nomination of an attorney who volunteered to join a litigation team seeking to frustrate the Civil Rights Division’s efforts to defend transgender people from discrimination is insulting not only to the LGBT community but to the career men and women of the Division who valiantly litigated that case for many months,” the national legal organization Lambda Legal said in a statement ahead of Dreiband’s confirmation hearing. “His nomination embodies this Justice Department’s lack of commitment to defending the civil rights of LGBT people.”