AG: Supreme Court case binding on sex discrimination in workplace in Arizona

The Supreme Court is seen in Washington, early Monday, June 15, 2020. (AP Photo/J. Scott Applewhite)

Attorney General Mark Brnovich is going to begin enforcing Arizona’s civil rights laws against private employers who discriminate based on someone’s sexual orientation.

In a new court filing, Brnovich said that he now considers last week’s ruling by the U.S. Supreme Court to be binding in all cases of sex discrimination in the workplace. More to the point, the filing says Brnovich will interpret the law that way even though state legislators have not amended Arizona’s own statutes.

The attorney general did acknowledge that the legislature is free to come in and amend the Arizona Civil Rights Act to specifically say that sexual orientation or transgender status is not covered under the state law. But, absent some legislative direction, Brnovich said that’s how he’ll enforce the law from now on.

Sen. Eddie Farnsworth, R-Chandler, who chairs the Senate Judiciary Committee, said he first wants to see the breadth of the Supreme Court decision. He said a lot of what happens next could depend on whether the ruling covers only employment discrimination or other forms, like housing or public accommodation.

But Rep. John Allen, R-Scottsdale, who chairs the House Judiciary Committee, said he’s not sure such a move to limit the scope of Arizona’s anti-discrimination laws — assuming there were the votes for it — would make sense.

The case involves Jane Bruer who had been employed at Phillips Law Group.

Mark Brnovich

What got the state involved is that the Civil Rights Division of the Attorney General’s Office would not issue her a “right-to-sue” letter because her allegations of sex discrimination were not within the agency’s jurisdictions. She then sued Brnovich, seeking a court ruling that the definition of “sex” within the Arizona law also includes “sexual orientation, sex stereotyping, transgender status, and gender identity and expression.”

In the new court filing, Brnovich is asking the court to throw out the claim, saying Bruer did get to sue after getting one of those “right-to-sue” letters from the federal Equal Employment Opportunity Commission. That case, he said, is now settled.

More to the point, Brnovich said the whole dispute — her demand the state recognized a broader definition of “sex” — is now moot based on the June 15 Supreme Court ruling, in a case called Bostock v. Clayton County, declaring that federal sex-discrimination laws do cover sexual orientation. And Brnovich told Maricopa County Superior Court Judge Joseph Mikitish, he intends to follow suit.

“In the wake of Bostock, the (Civil Rights) Division will now review cases alleging employment discrimination because of sexual orientation or transgender status,” he wrote. The attorney general said that he really has little choice.

“For decades, the Arizona courts have looked to the U.S Supreme Court’s interpretations of Title VII in determining the scope of the similarly worded Arizona Civil Rights Act Unlawful Employment Practices Statute,” the filing said. “The Division has done the same and will do so with regard to Bostock as well, now that, for the first time, the court has held that Title VII protects against discrimination based on sexual orientation or transgender status.”

But Brnovich did give lawmakers who may disagree an escape clause of sorts.

“The Arizona Legislature may, of course, pass legislation clarifying that the definition of ‘sex’ in the … statute did not include sexual orientation or transgender status,” he wrote. “Legislatures often pass legislation to correct a court’s statutory interpretation to which they disagree.”

Absent that, however, Brnovich said he intends to follow the U.S. Supreme Court decision.

Brnovich spokesman Ryan Anderson said there’s a good reason for Arizona to follow the Supreme Court precedent.

“It avoids the state from potentially incurring potentially unnecessary litigation costs in the future ,” he said. “And, legally, it is consistent with what the Supreme Court decided.”

Allen said it would have been nice if the justices, in their decision, had left the issue up to lawmakers.

“Once again, the courts have jumped in when we were kind of sorting this thing out for ourselves politically,” he said.

“The administration and the state was just trying to figure out where the new lines are and stuff like that,” Allen continued. “And the courts could have just deferred to the states to try to figure this out.”

Anyway, he said, it makes little sense for lawmakers to try to effectively overturn the high court ruling, at least in Arizona.

“We could do that, and we could be successful for awhile,” Allen said.

“But I’m not sure it would hold up” against any future court challenge, he said. “I mean, you’re fighting a battle that’s already been fought.”

Anderson said there are many reasons that individuals would want to file sex discrimination claims under the Arizona law. Most crucial, he said, is that the state can usually reach a decision as to whether discrimination has taken place within months and, if necessary, file suit on that person’s behalf in under a year. By contrast, Anderson said, taking cases through the EEOC can take five to seven years to resolve.

Until last week’s Supreme Court ruling, there was no statewide protection for gays and transgender people against sex discrimination.

Several Arizona cities do have their own ordinances. And a 2003 executive order by then-Gov. Janet Napolitano, still in effect, makes it illegal for state agencies to discriminate in employment practices based on sexual orientation.