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 the recent ruling by the U.S. Supreme Court to be binding in all cases of sex discrimination in the workplace and will interpret the law that way even though state legislators have not amended Arizona’s own statutes.
The attorney general acknowledged 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-Gilbert, who chairs the Senate Judiciary Committee, said he first wants to see how broad is 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.
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.’’
Brnovich said the dispute is now moot based on the June 15 Supreme Court ruling and said his Civil Rights Division “will now review cases alleging employment discrimination because of sexual orientation or transgender status.’’
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, adding:
“Legislatures often pass legislation to correct a court’s statutory interpretation to which they disagree.’’
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 had left the issue up to lawmakers. But he conceded it makes little sense for lawmakers to try to effectively overturn the high court ruling, at least in Arizona.
“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 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, taking cases through
the EEOC can take five to seven years to resolve.
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.