Three years ago, the Equal Employment Opportunity Commission ruled that discrimination based on gender identity was sex discrimination. That ruling meant that transgender discrimination was included among the behaviors expressly forbidden by Title VII of the 1964 Civil Rights Act. That ruling did not, however, tackle the question of whether anti-gay discrimination in the workplace should be considered sex discrimination. In a recent 3-2 vote, the EEOC has now made its position clear. If an employer discriminates against you based on your sexual orientation, that employer is violating the Civil Rights Act.
The question is broader than the EEOC’s ruling. There have been a number of cases over the years touching on this issue. The problem is that “sexual orientation” is not specifically listed in Title VII as one of the prohibited bases for an employment lawsuit. Congress is well aware of this omission and has failed to correct it, despite numerous opportunities to do so. With the majority so firmly against them, Congress may soon take steps to protect same-sex oriented people through Title VII, but for now the courts are left to make their own decisions. Several circuit courts have declined to protect workers from this form of discrimination.
Progress has been made on several fronts in the fight to protect workers from sexual orientation discrimination. Even Supreme Court rulings have allowed for an interpretation of sex discrimination that can include sexual orientation discrimination. Some might say that it’s quibbling to want the protection stated more clearly. Others would argue that the wiggle room of leaving it out offers ways for people to be subtly discriminated against for their sexual orientation.
The EEOC does not have binding authority on circuit courts. The EEOC ruling does not force circuit courts to accept that sexual orientation discrimination is expressly against the Civil Rights Act of 1964. It might help to put pressure on circuit courts and the Supreme Court to clarify what should have been established decades ago. Employment discrimination based on a person’s sexual orientation is wrong and is forbidden by federal law.
Source: The Washington Post, “Anti-gay discrimination is sex discrimination, says the EEOC,” by Dale Carpenter, 16 July 2015