EEOC Rules that Workplace Sexual Orientation Discrimination is Illegal

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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Last week the United States Equal Employment Opportunity Commission (EEOC) ruled that anti-gay discrimination in the workplace is a violation of federal law under Title VII of the Civil Rights Act of 1964.  Title VII is the vehicle by which any form of sexual discrimination in the workplace is criminalized, but up until the EEOC’s decision it has not included discriminatory behavior based on sexual orientation.  While the EEOC’s ruling is a significant step in the ongoing efforts to secure equal protection for LGBT individuals, it will not force courts to adopt a similar position and the legal battle over the extent of Title VII protections could be the next significant gay rights issue to hit the federal judiciary.

EEOC Commission Determines Anti-Gay Discrimination is Sex Discrimination

The case before the EEOC commission, which issues the agency’s rulings on a variety of workplace discrimination issues, arose when a former federal air traffic controller who argued he was passed over for a promotion because he was gay.  Although his claim was initially denied because the local EEOC office determined sexual orientation was not protected his appeal to the commission was successful. In a split 3 – 2 vote, the EEOC commission opinion determined that sexual orientation discrimination falls under the umbrella of Title VII sex discrimination, writing, “An allegation of discrimination on the basis of sexual orientation is necessarily an allegation of sex discrimination.”  Further, according to the commission, “Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes or norms.” 

The decision was reached after consultations with a variety of advocacy groups, legal scholars, and discrimination experts who provided the majority with enough information to conclude that discrimination based on sexual preference was sufficiently tied to sex discrimination to become illegal under Title VII.  The ruling runs counter to years of federal court precedent which has argued that if Congress intended to protect LGBT individuals then it would have specifically prohibited sexual orientation discrimination in Title VII, but the EEOC commission stood fast by calling past rulings dated and setting a new approach to sexual orientation discrimination that it determined is more appropriate for modern jurisprudence.  The ruling is significant because LGBT individuals who allege they are discriminated against have a clear pathway to legal recourse under existing federal law – meaning they do not need to wait for Congress to pass legislation that specifically prohibits discrimination based on sexual orientation or identity.

The ruling will not bind federal courts as the EEOC can only serve an advisory role in interpreting what constitutes discrimination, but courts have cited agency decisions to make decisions on a variety of issues in the past.  The EEOC commission has set the stage for an upcoming legal battle that will require federal courts – maybe even the Supreme Court – to determine the extent of protection afforded the LGBT community.

Sexual Orientation Discrimination Not Settled Yet

Although LGBT advocates have heralded the ruling as a significant step in the right direction, the EEOC has not forbade sexual orientation discrimination by finding it illegal under Title VII.  Federal and state courts are not required to follow an agency commission’s decision on any issue, however, courts will often defer to agencies when unsure how to interpret a statute or legal provision.  Agencies like the EEOC are considered experts in their designated area, and judges often recognize the value of their opinions on matters that are ambiguous or unsettled by existing federal law.

Given the particularly sensitive, and divisive, nature of sexual orientation discrimination, however, it is possible that several judges, particularly conservative ones, will criticize and deviate from the EEOC’s holding when forced to confront the issue directly.  Although the federal judiciary demonstrated significant support for gay rights issues in the wave of decisions striking down same-sex marriage bans, questions remain about whether courts will follow the EEOC’s guidance and determine that sexual orientation discrimination is prohibited under existing federal law. 

As gay rights advocates continue to press for protection from discrimination in the workplace (and beyond) it is becoming apparent that judiciary rulings, either from the courts or agencies like the EEOC, are the fastest method of achieving equality goals.  With a conservative controlled Congress, the gay rights agenda has a long and hard legislative fight which might be avoidable if federal courts follow the EEOC’s lead and expressly forbid sexual orientation discrimination under Title VII. 

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