In a surprising departure from decades of settled law, the Trump Justice Department is making the argument that the anti-discrimination provision of the 1964 Civil Rights Act doesn’t apply to federal workers, according to a new lawsuit filed against it today.
Filed on behalf of a Lebanese-American immigration judge who claims she was fired without explanation, the lawsuit says, “The President of the United States has asserted a constitutional right to discriminate against federal employees.” The fired judge, Tania Nemer, has accused the government of discriminating against her on the basis of sex and national origin.
In addition to accusing the DOJ of discriminating against her on the basis of gender and national origin, Nemer also said the department violated her First Amendment rights by taking action against her because she is a Democrat.
Nemer had run for office in Ohio as a Democrat before being hired in 2023 by the Justice Department to serve as an immigration judge. Fifteen days after President Donald Trump took office, she was fired, despite receiving the highest possible performance rating, according to the suit.
Title VII of the Civil Rights Act prohibits discrimination in employment based on race, color, religion, sex, or national origin. In 1972, Congress extended Title VII’s critical protections to the federal workforce.
No explanation for the firing was given, the suit says, other than a letter saying that “Ms. Nemer was removed from her position by the Acting Attorney General under the authority of Article II of the United States Constitution.”
Nemer filed a complaint in April with the federal Equal Opportunity Office but, according to her lawsuit, that office did not investigate as required by law. Instead, the office issued a ruling in September asserting that Title VII of the Civil Rights Act “does not constrain discriminatory dismissal against immigration judges because the statute conflicts with the president’s Article II removal power.”
That is a stunning claim, never before asserted by the Justice Department, legal experts say.
“This administration’s vision of a nearly omnipotent, unitary executive with power to determine who does and doesn’t serve in the executive branch is clearly at odds with the law,” said Joyce Vance, a former federal prosecutor and MSNBC legal contributor. “Ultimately, it will be up to the Supreme Court to act as the check on this unconstitutional exercise of power.”
The Justice Department declined to comment.
“The government’s legal theory reflects an unprecedented assault by the current Administration against the civil service laws that protect millions of federal employees,” the lawsuit says. “If the government prevails in transforming the law, it will eviscerate the professional, non-partisan civil service as we know it.”
Nemer’s lawsuit asks for her to be reinstated to her position, as well as full back pay and other compensatory damages. The suit was filed by Nathan Zelinsky, co-founder of Washington Litigation Group, which has been representing federal employees who claim to have been targeted by the Trump Administration.
Ken Dilanian is the justice and intelligence correspondent for MS NOW.