Dhillon, the nominee for EEOC chair, said she would work with staff to review the issue but said uncertainty in the courts and the Justice Department’s opposing view—first stated in a pending federal appeal in New York—poses a problem to staking a definitive position.

“The current law is in flux,” Dhillon said. “We now have a split in the circuits and two agencies that have taken differing views of the same text.”

The EEOC has stood by its stance in appeals court litigation. In July, the Trump administration’s Justice Department, rejecting the EEOC’s stance, filed a friend-of-the-court brief in the U.S. Court of Appeals for the Second Circuit.

The Justice Department argued that federal civil rights law does not include sexual orientation and that Congress has the power to expand those rights, not the courts.

The EEOC has weighed in with the opposite view in several appeals courts, arguing that sexual orientation should fall under federal civil rights protections that do not allow discrimination against sex. The agency, charged with enforcing Title VII Civil Rights laws, said the claims against the company involve gender-based stereotyping and gender-based discrimination.

Sen. Patty Murray of Washington, the ranking Democrat on the Senate health and labor committee, called Dhillon's equivocation on her response to questions about the EEOC’s current stance “wishy-washy.” Other Democrat leaders pressed Dhillon and Gade on the question.

Dhillon said the issue was an important one to address but said that it’s important the federal government speaks in one voice on how the law is interpreted.

She stressed that she did not think sexual orientation discrimination should be tolerated and she does not believe someone’s identity has an effect on their ability to perform a job.

“This has real human implications for people and their families. It’s easy to give a quick answer but the issue is too serious to give a quick answer,” Dhillon said. “Ideally, a legislative solution could resolve this.”

Gade said he would make no effort to reinterpret the EEOC guidance, unless there was a clear legal reason to move on the issue.

The Second Circuit, sitting as a full court, is poised to take up the dispute next week. The U.S. Court of Appeals for the Seventh Circuit, in Chicago, ruled in April that sexual orientation discrimination violates the Civil Rights Act. That ruling was hailed a landmark decision by gay rights advocates. A three-judge panel in the U.S. Court of Appeals for the Eleventh Circuit concluded that the Civil Rights Act does not include protections for gay or bisexual employees.