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EEOC Says Gays Protected Against Employment Discrimination

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EEOC Commissioner Chai Feldblum. | US EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
EEOC Commissioner Chai Feldblum. | US EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

In a complete turnaround, the federal agency that enforces Title VII of the 1964 Civil Rights Act has, for the first time, ruled the federal ban on employment discrimination because of sex includes discrimination against somebody because they are gay, lesbian, or bisexual.

The July 15 holding by Equal Employment Opportunity Commission reverses the position the agency has held throughout its 50-year history.

In reversal of half-century policy, US equal employment agency says sexual orientation bias is sex discrimination

Acting in its capacity as an appeals forum, the EEOC overruled a 2013 administrative decision from the federal Department of Transportation that rejected a discrimination claim by a man denied a permanent management position by the Federal Aviation Administration. As is customary with EEOC administrative rulings, its ruling does not identify the man other than as “Complainant.”

The History of Title VII’s Sex Discrimination Ban

The EEOC went into business in July 1965 when Title VII took effect. The 1964 Civil Rights Act was approved only after prolonged struggle in Congress, including a lengthy Senate filibuster led by Southern Democrats opposed to racial integration of the workplace. Almost all of the attention during that debate centered on the federal ban on race discrimination. The bill originally introduced in the House of Representatives was limited to race or color, religion, and national origin as prohibited grounds of discrimination.

House committees did study sex discrimination issues, as well, but they concluded that the Equal Pay Act passed in 1963, which prohibited compensating men and women at different rates for the same work, was sufficient. The 1964 measure’s proponents feared that adding a general prohibition on sex discrimination would endanger the bill’s passage.

When the measure was debated on the House floor, however, Representative Howard Smith of Virginia, a long-time advocate of equal rights for women but also an opponent of racial nondiscrimination legislation, introduced an amendment to add sex, which was passed by an unlikely alliance of pro-feminist liberals and Southern conservatives, that latter group hoping the amendment would doom the bill. Because “sex” was added as a floor amendment, the committee reports on the bill do not discuss it, and Smith’s amendment did not add any definition of sex, instead merely adding the word “sex” to the list of prohibited grounds of discrimination.

After the bill passed the House, it went to the Senate under a leadership deal that bypassed the committee process, to prevent Mississippi Senator James Eastland, the Democratic Judiciary Committee chair, from keeping it bottled up there. Instead, the measure went directly to the Senate floor under a procedure that allowed little opportunity for amendments. The debate included some brief discussion about the inclusion of sex but nothing really illuminating, apart from a floor amendment attempting to reconcile the bill with the Equal Pay Act.

As a result of the unusual way in which “sex” was added to the 1964 bill, the “legislative history” provides no help in figuring out what kind of discrimination Congress intended to ban when it voted to add that category to the list of prohibited grounds for employment discrimination. Since 1964, the EEOC and the courts were left to their own devices in trying to figure out what this meant. The conclusion they reached early on was that it was intended to prohibit discrimination against women because they were women or against men because they were men. Both the EEOC and the courts soon began to rule that the ban on sex discrimination did not apply to bias based on a person’s sexual orientation or gender identity.

One commonsense reason typically raised by courts in rejecting such discrimination claims was that if Congress had intended to ban such discrimination, there surely would have been some mention of that during the debates over the bill. And they point out that despite repeated efforts to add protections against sexual orientation and gender identity discrimination since the early 1970s, Congress has never done so, another indicator on the intentions on Capitol Hill.

Changing Winds in the View of Sex Discrimination

That conventional wisdom began to change in 1989, in a Supreme Court ruling in Price Waterhouse v. Hopkins that opened up a changing landscape for sexuality issues under Title VII. Ann Hopkins, rejected for a partnership at Price Waterhouse, won a ruling from the Supreme Court that sex stereotypes held by some of the partners who voted against her — that she was insufficiently feminine to represent the firm — violated her rights under Title VII. Writing for a plurality of the high court, Justice William J. Brennan said that Title VII applied to discrimination because of gender, not just biological sex.

Later courts seized on the Price Waterhouse ruling to justify taking a broader view of sex discrimination under Title VII. By the early 2000s, there was a growing body of federal court rulings suggesting that LGBT people might be protected to some extent under Title VII, depending on the nature of their case. If the discrimination they suffered could be described in terms of sex stereotypes or if they could show that they had been the victim of sexual harassment that turned in some way on their gender, they might be able to maintain a legal claim of discrimination.

Within the past few years, the EEOC has taken a leading role in making these developments more concrete, particularly through its decision-making on discrimination claims brought against federal agencies, where it plays an important appellate role reviewing rulings by federal agencies on internal employment grievances.

In 2012, the EEOC ruled in Macy v. Dep’t of Justice that a transgender woman who was denied a position because of her gender identity had a valid claim under Title VII. This ruling echoed many then-recent federal court decisions — including some by courts of appeals — finding that discrimination because of gender identity almost always involves sex stereotyping by the discriminating employer.

Late last year, the EEOC and then the Justice Department concluded that all gender identity discrimination claims could be investigated and prosecuted under Title VII. Pushing that position forward, the Justice Department has filed suit on behalf of the EEOC or joined ongoing private cases in federal court seeking to move the courts beyond the stereotyping theory to a straightforward acceptance that gender identity discrimination is sex discrimination.

What's New About the Latest EEOC Ruling?

The new July 15 ruling by the EEOC seeks to achieve the same thing for lesbians, gay men, and bisexuals confronting employment discrimination. While acknowledging the significance of the Supreme Court’s Price Waterhouse decision and sex stereotyping theory in widening the agency’s appreciation of the scope of sex discrimination, this ruling takes things a step further.

“In the case before us,” wrote the Commission, “we conclude that Complainant’s claim of sexual orientation discrimination alleges that the Agency relied on sex-based considerations and took his sex into account in its employment decision regarding the permanent [management] position. The Complainant, therefore, has stated a claim of sex discrimination. Indeed, we conclude 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. A complainant alleging that an agency took his or her sexual orientation into account in an employment action necessarily alleges that the agency took his or her sex into account.”

The EEOC amplified its conclusion with an extended discussion, grounding its conclusion in rulings by several federal courts and pointing especially to the well-established principle that discriminating against somebody because of the race of their sexual partner has long been deemed by the Commission and the courts to be race discrimination. Logically, then, discriminating against somebody because of the sex of their sexual partners would be sex discrimination.

The Commission also referenced the recent marriage equality litigation, noting the Supreme Court’s statement in Obergefell v. Hodges that laws prohibiting same-sex marriage “abridge central precepts of equality.” The EEOC also explained that recent court rulings have made clear that stereotyped thinking about proper gender roles, as well as behavior, underlies much sexual orientation discrimination, thus providing a firm theoretical justification in the Supreme Court’s Price Waterhouse case.

 

The Impact of EEOC Rulings on the Broader Judicial Environment

What is the significance of this EEOC ruling? It is likely to result in the agency initiating federal court litigation — enlisting the Justice Department — to push this interpretation of Title VII into the courts. Although federal courts are not bound by an administrative agency’s interpretations of their governing statutes, the Supreme Court has frequently deferred to agency interpretations when they are seen as consistent with the statutory language and overall congressional purpose and constitute a reasonable reading of the statute.

But EEOC’s past rulings may result in courts according its July 15 decision less deference than they might otherwise. When an agency “changes its mind” about an issue, courts may be skeptical about whether the new ruling is more political than legalistic. So it may be premature to assume that this EEOC ruling means there is no need to enact explicit federal protection.

In fact, the EEOC’s action comes at a time when LGBT political leaders have abandoned the long-stalled Employment Non-Discrimination Act, finding it too narrowly focused on employment. Objections have also been raised to the extremely broad religious exemption contained in ENDA. One of the major lobbying victories last summer was persuading the administration not to include the broad ENDA-style religious exemption in President Barack Obama’s executive order banning sexual orientation and gender identity discrimination by federal contractors.

Lobbyists are now working with legislators on a broader comprehensive LGBT civil rights bill, set to be introduced July 23, that would go beyond employment to cover other areas traditionally addressed in federal law, including housing, public services, and public accommodations.

In the meantime, however, it will certainly be useful for the federal government’s primary civil rights enforcement agency, the EEOC, to be on record that sexual orientation discrimination is sex discrimination. EEOC’s view may be influential with the agencies that enforce the Fair Housing Act and the provisions of the 1964 Civil Rights Act, and its analysis may prove persuasive to the courts, regardless of the level of the deference it receives.

The vote on this decision is not indicated in the opinion (which was drafted by the Commission’s staff), but was reported in the press as a party-line vote of 3-2. Under the statute, the five-member Commission may not have more than three commissioners who are members of the same political party. The two Republicans on the Commission voted against this decision, but did not issue a written dissent.

A prime mover behind the EEOC’s expanded view of sex discrimination to encompass gender identity and sexual orientation claims has been Commissioner Chai Feldblum, the first openly LGBT member of the EEOC, who was appointed by Obama and confirmed by the Senate for a second term last year.

Updated 5:17 pm, July 20, 2018
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