The next step in the LGBTQ movement may have a leg up

The EEOC ruled to ban workplace discrimination based on sexual orientation as an interpretation of workplace gender bias.

Photo by Michael Key (Washington Blade)

With marriage equality now established in all 50 states, the LGBTQ movement has many areas to focus on, including anti-discrimination laws in all states.  With fifty-two percent of the LGBTQ population living in states that do not prohibit employment discrimination, and no federal ban on workplace discrimination based on sexual orientation, the new EEOC ruling has provided a possible way to secure employment equality.

the EEOC ruled in a 3-2 vote that workplace discrimination based on sexual orientation is prohibited as a form of sex discrimination

The Equal Employment Opportunity Commission (EEOC) ruled in favor of the Supervisory Air Traffic Control Specialist from Miami, Florida, who filed a complaint of unlawful employment discrimination back in 2012.  The complainant alleged that he experienced discrimination on the bases of sex—as a male who identifies as gay—because he was not selected for a permanent position at the Miami facility of the Air Traffic Control Tower/International Airport.  Subsequently, the employer investigated and on July 12, 2013 concluded that no discrimination occurred.  The complainant appealed this decision to the EEOC.

On appeal, the EEOC ruled in a 3-2 vote that workplace discrimination based on sexual orientation is prohibited as a form of sex discrimination.  The conclusion was drawn from an interpretation of Title VII of the Civil Rights Act of 1964 which states a prohibition of any discrimination based on sex by personnel actions affecting federal employees or applicants for employment.  The EEOC concludes that because “sex discrimination means that employers may not ‘rel[y] upon sex-based considerations’ or take gender into account when making employment decisions,” as previously held by the Supreme Court in Price Waterhouse v. Hopkins, then the prohibition “applies equally in claims brought by lesbian, gay, and bisexual individuals under Title VII.”

The EEOC explains that the question is not about whether sexual orientation is explicitly listed in Title VII as a prohibited basis for discrimination, but rather whether the employer “relied on sex-based considerations” when taking the challenged employment action.  Therefore, the EEOC concludes that “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.”

the new EEOC ruling is contrary to many circuit court rulings

The EEOC presents two justifications for its ruling.  As the EEOC explains, “sexual orientation cannot be defined or understood without reference to sex,” taking for example a lesbian woman is deemed so because she is a woman that is attracted to another woman.  Additionally, the EEOC reasons that sexual orientation based discrimination is “associational discrimination on the basis of sex” because the employer took the employees sex into account when discriminating for associating with a person of the same sex.

Although the federal courts have previously broadly adopted the 2012 EEOC ruling that gender identity based discrimination towards transgender workers is a form of sex discrimination, the new EEOC ruling is contrary to many circuit court rulings.

The EEOC dismisses the reference to the circuit court rulings that conclude sexual orientation is excluded from Title VII in its opinion, stating “many courts simply cite earlier and dated decisions without any additional analysis.”  However, Dale Carpenter, law professor at the University of Minnesota Law School, notes that many circuit courts reason that not only is “sexual orientation” not an enumerated prohibition in Title VII, but also that Congress had no intention eliminating sexual orientation based discrimination when enacting Title VII and has subsequently refused to add sexual orientation among the listed prohibitions.

the EEOC ruling may pave the way for employment equality throughout all 50 states

No federal law specifically outlaws workplace discrimination on the basis of sexual orientation in the private sector.  Although a 1998 Executive Order prohibits discrimination based on sexual orientation in the federal civilian workplace, many employers, including the Federal Aviation Administration—subject of the EEOC ruling, are outside the scope of the executive order.  With the EEOC interpretation, federal workers now have a new avenue to pursue if they experience sexual orientation based discrimination.

Even though federal courts do not have to adopt the EEOC’s position on sexual orientation discrimination, the EEOC itself has jurisdiction over the prohibitions against employment discrimination codified in Title VII, among other discrimination laws.  Essentially, the EEOC’s decision now allows for an employee, state or federal, to file a complaint alleging sexual orientation discrimination with the Commission.  Consequently, with 28 states lacking a non-discrimination law for gay and lesbian workers, the EEOC ruling may pave the way for employment equality throughout all 50 states.

A state employee who feels that they have been discriminated against at work can file a Charge of Discrimination, which leads to an investigation by the EEOC.   If no violation is found, the employee receives permission to file suit in court.  If a violation is found, and no voluntary settlement with the employer can be reached, the EEOC can decide to represent the private employee in a lawsuit against the employer.  Thus under the new EEOC guideline, gay private employees now have fuel to file lawsuits against their discriminating employers.

Not only can the EEOC’s ruling affect employment discrimination based on sexual orientation, it also has the potential of expanding sex discrimination in other area

The EEOC ruling will not be binding authority on the courts, however it is persuasive authority.  Courts often times rely on other agencies that have greater expertise in a certain area, like the EEOC with its expertise in employment law, to help interpret laws and make conclusions.  Thus the EEOC decision could be adopted by some circuit courts, and even if it is not, a circuit split could lead to the Supreme Court stepping in.

Not only can the EEOC’s ruling affect employment discrimination based on sexual orientation, it also has the potential of expanding sex discrimination in other areas.  As Dale Carpenter states in his Washington Post article, “if anti-transgender and anti-gay discrimination are forms of sex discrimination in employment, why wouldn’t they also be forms of sex discrimination in housing and education?”  After all, there are already sex anti-discrimination laws in housing and education, allowing the EEOC’s interpretation of employment law to possibly extend to those areas as well.  With this realization, the LGBTQ movement can advance with having uniform protections against discrimination across the nation.

Ana Hopper, Editor-in-Chief Emeritus
About Ana Hopper, Editor-in-Chief Emeritus (33 Articles)
Ana Hopper is a 2016 Campbell Law graduate and served as the Editor-in-Chief of the Campbell Law Observer for the 2015-2016 academic year. She is originally from Winston-Salem and graduated from the University of North Carolina at Charlotte in 2012 with a Bachelor of Arts in Political Science and Sociology. The summer following her first year of law school, Ana worked as a research assistant for Professor Amy Flanary-Smith. Ana also interned at the Criminal Appellate Section of the Department of Justice her second year, and at the New Hanover District Attorney's Office as an intern the summer before her third year. She served as a Legal Research and Writing Scholar, Vice President of BLSA, and Community Chair of Lambda during her time at Campbell.
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