On July 17, the Equal Employment Opportunity Commission (EEOC) ruled in a 3-2 decision that sexual-orientation discrimination is illegal under Title VII of the Civil Rights Act of 1964 because it’s a form of “sex” discrimination, which is explicitly forbidden. The EEOC is relying on its previous decision finding that Title VII bars discrimination on the basis of gender identity, protecting transgender employees, but this groundbreaking decision effectively declares that employment discrimination against gay, lesbian and bisexual workers is unlawful in all 50 states.
The EEOC’s ruling is not nearly as “out of the blue” as it may seem to most people and it has nothing to do with the recent Obergefell vs. Hodges decision rendering marriage legal nationwide for gay people. The EEOC’s decision regarding LGBT discrimination in the workplace has been a long time in the making and can be traced back to a unanimous 1997 Supreme Court opinion in Oncale v. Sundowner, written by none other than Justice Antonin Scalia.
Oncale v. Sundowner confronted Title VII’s prohibition of discrimination “because of sex” after Joseph Oncale was brutally sexually harassed physically and verbally by seven men he worked with on an oil rig. Even though Scalia acknowledged that male-on-male sexual harassment “was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” he continued by stating, “[S]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
That statement has formed the bedrock of the EEOC’s expansion of Title VII’s protections to sexual and gender minorities to this very day. In a 2012 decision holding that Title VII bars discrimination based on gender identity and transgender status, the EEOC placed Scalia’s “comparable evils” declaration at the center of its analysis. Two weeks ago, the EEOC did the same thing and quoted Scalia, noting that the text of Title VII does not exclude sexual minorities from the law’s protections. Moreover, Supreme Court Chief Justice John Roberts hinted at similar reasoning earlier this year during the marriage-equality cases.
“If Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t,” Roberts argued. “And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?” And now, thanks in part to Scalia and Roberts, LGBT employees in every state are protected from workplace discrimination by federal law!
The EEOC’s holding based on Oncale and other case law is straightforward — which is quite welcomed. Title VII prohibits discrimination on the basis of sex, including irrational sex stereotyping. The EEOC previously held that when an employer discriminates against a gay employee for being effeminate — or a lesbian employee for being butch — that qualifies as illegal sex stereotyping. Here, they take that logic one step farther and hold that when an employer disapproves of a lesbian employee’s orientation, he’s really objecting to the fact that a woman is romantically attracted to another woman. This objection is based on irrational, stereotyped views of femininity. Thus, when the employer discriminates against his lesbian employee, that discrimination is based in large part on her sex, and on his disapproval that she does not fit into her gender role.
The EEOC’s views on the scope of Title VII are considered persuasive, but not binding, authority in litigation. Unfortunately, the EEOC’s view that discrimination based on sexual orientation is sex-based discrimination already runs counter to several circuit courts and the thought that this ruling will be as widely followed as its ruling concerning transgender discrimination may be misplaced. In the past, the common reasoning among district and federal courts is that “sexual orientation” is not among the list of prohibited bases for employment action, that Congress did not intend to eliminate antigay discrimination when it enacted Title VII, and that all this is further proved by the fact that over a 30-year time period, Congress has repeatedly refused to add “sexual orientation” to employment protections.
While this development is very exciting, the broader implications are even more impactful. Sex discrimination as defined previously by Title VII is also forbidden by federal law in housing and in education, as well as in other areas. As such, now that there is precedent within the EEOC that anti-transgender and antigay discrimination are forms of sex discrimination in employment, the reasoning can be adopted in federal agencies across the country. While the EEOC isn’t charged with interpreting and enforcing those other federal laws, and its reasoning is in no way binding on other agencies, the commission’s reasoning could be applied beyond the employment context.
If the EEOC’s ruling sticks, it will have accomplished what Congress could not: full discrimination protection in the workplace for the LGBT community nationwide. Not surprisingly, the next president will play a determining role in whether or not the EEOC’s ruling has a broader impact. That president could appoint EEOC members and Supreme Court justices (although Scalia and Roberts are doing a great job for the LGBT community!) who feel differently about the meaning of Title VII, and the opinion could be reversed. As with most civil-rights victories, the LGBT community must not become complacent, but instead understand that while this EEOC ruling is a huge victory, it is not etched in stone. Only continued advocacy over the years in the legal and political realms will solidify equal protection for all.