On July 15, 2015, the Equal Employment Opportunity Commissioner (EEOC) issued a decision, in a 3-2 vote, that Title VII of the 1964 Civil Rights Act forbids sexual orientation discrimination in employment as a form of gender discrimination. This decision comes three years after a similar EEOC decision in which the Commission ruled discrimination based on gender identity is also gender discrimination. The ruling on transgender employment rights has been broadly accepted by the federal courts.
In years past, courts have consistently ruled that Title VII does not prohibit employment discrimination based on sexual orientation. Thus, the LGBT community had to rely on states to pass employment protections. Currently, only 21 states and D.C. have passed such laws regarding sexual orientation, and only 18 states and D.C. also prohibit discrimination based on gender identity.
Breaking down the EEOC’s decision, it began with noting that Title VII’s provision prohibiting sex discrimination has been interpreted to mean that employers may not rely upon “sex-based considerations” or take gender into account when making employment decisions. The Commission concluded that sexual orientation is inherently a “sex based consideration.”
Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex. For example, assume that an employer suspends a lesbian employee for displaying a photo of her female spouse on her desk, but does not suspend a male employee for displaying a photo of his female spouse on his desk. The lesbian employee in that example can allege that her employer took an adverse action against her that the employer would not have taken had she been male. That is a legitimate claim under Title VII that sex was unlawfully taken into account in the adverse employment action. …. The same result holds true if the person discriminated against is straight.
The Commission noted that such discrimination was also “sex discrimination because it is associational discrimination on the basis of sex.” In other words, an employee alleging discrimination on the basis of sexual orientation is alleging their employer took their sex into account by treating them differently for associating with a person of the same sex. The theory of associational discrimination is not new and has been consistently applied for decades in the context of race discrimination claims under Title VII. “In applying Title VII’s prohibition of race discrimination, courts and the Commission have consistently concluded that the statute prohibits discrimination based on an employee’s association with a person of another race, such as an interracial marriage or friendship.”
The Commission also found that sexual orientation is sex discrimination because it is inherently based upon gender stereotypes, which has been ruled to be prohibited by Title VII. “Sexual orientation discrimination and harassment “[are] often, if not always, motivated by a desire to enforce heterosexually defined gender norms.'”
It is important to note that the EEOC’s decision and underlying interpretation of Title VII is not binding on federal courts. Additionally, the next president could appoint Commission members who would rule differently and they could reverse this divided opinion. Until the Supreme Court weighs in, lower courts may choose to accept or reject the EEOC’s reading of Title VII. However, relevant agency interpretations, such as the EEOC in employment discrimination matters, are generally given great deference by the courts.
We have a long way to go and there is no way to predict how long it will take before a case is presented to the U.S. Supreme Court regarding whether Title VII prohibits sexual orientation/transgender employment discrimination. But there is currently little hope of Congress even voting upon much less passing the Employment Non-Discrimination Act, which would explicitly prohibit employment discrimination nationwide based upon sexual orientation or gender identity. Thus, this is very promising news for those LGBT individuals who live in states that do not provide any employment protection.
To read the EEOC opinion in its entirety, go here.