What the EEOC ruling means for you.
On July 17, the Equal Employment Opportunity Commission (EEOC) ruled that sexual orientation discrimination is illegal under Title VII of the Civil Rights Act of 1964 because it’s a form “sex” discrimination, which is explicitly forbidden. The EEOC relied on previous decision that Title VII bans discrimination on the basis of gender identity, which protects 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 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 seven co-workers men sexually harassed and assaulted Joseph Oncale. 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 concluded 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 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.
Last month, the EEOC quoted Scalia again, noting that 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 Chief Justice Roberts, LGBT employees in every state are protected from workplace discrimination by federal law!
While this is exciting, the broader implications are even more impactful. The EEOC has now set a precedent that anti-transgender and anti-gay discrimination are forms of sex discrimination in employment. And sex discrimination—as defined previously by Title VII—is also federally forbidden in housing and education, which means that the commission’s reasoning could be applied beyond the employment context, even if the EEOC isn’t responsible for charging discrimination outside the workplace.
If the EEOC’s ruling lasts, 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 can be broadened. That President could appoint EEOC commission 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. We need to understand that while the EEOC ruling is a huge victory, it is not etched in stone, and only continued advocacy will solidify equal protection for all.