Plan B Forum

WASHINGTON — The Equal Employment Opportunity Commission has ruled that existing civil rights law bars sexual orientation-based employment discrimination — a groundbreaking decision to advance legal protections for gay, lesbian, and bisexual workers.

“[A]llegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex,” the commission concluded in a decision dated July 15.

The independent commission addressed the question of whether the ban on sex discrimination in Title VII of the Civil Rights Act of 1964 bars anti-LGB discrimination in a complaint brought by a Florida-based air traffic control specialist against Transportation Sec. Anthony Foxx.

The ruling — approved by a 3-2 vote of the five-person commission — applies to federal employees’ claims directly, but it also applies to the entire EEOC, which includes its offices across the nation that take and investigate claims of discrimination in private employment.

While only the Supreme Court could issue a definitive ruling on the interpretation, EEOC decisions are given significant deference by federal courts.

In 2012, the commission addressed a similar issue regarding whether transgender workers are protected under the sex discrimination ban from discrimination. There, in a case brought by Mia Macy against the Bureau of Alcohol, Tobacco, Firearms and Explosives, the commission ruled that gender identity-based discrimination is barred by the sex discrimination ban. In December 2014, the Justice Department announced a similar view of the law — stating that it would apply that interpretation in its cases.
While the EEOC had been pushing toward today’s decision with cases and even field guidance addressing coverage under Title VII of specific types of discrimination faced by gay people, the July 15 decision states that “sexual orientation is inherently a ‘sex-based consideration.’”

In reviewing courts’ prior interpretation of the words of Title VII, the commission acknowledged plainly that sexual orientation itself is not listed as a type of discrimination barred in the 1964 law.

“[T]he question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. It is not,” the commission found. Instead, the commission stated that the question is the same as in any other Title VII sex discrimination case: “whether the agency has ‘relied on sex-based considerations’ or ‘take[n] gender into account’ when taking the challenged employment action.”

The commission found that sexual orientation discrimination is sex discrimination for several reasons. Among the reasons, the commission stated, is because sexual orientation discrimination “necessarily entails treating an employee less favorably because of the employee’s sex” and “because it is associational discrimination on the basis of sex.”

After a review of the case law regarding similar challenges to employment practices alleging a violation of Title VII where the initial understanding of the law would not have included that coverage, the commission stated, “The courts have gone where the principles of Title VII have directed.”

“Our task is the same,” the decision found. “We therefore conclude that Complainant’s allegations of discrimination on the basis of sexual orientation state a claim of discrimination on the basis of sex. We further conclude that allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex.”

Long Run wrote:I read the opinion and was but am unpersuadedable.

the political appointees on the EEOC board...

...did not even attempt to justify their decision based on the intent of Congress, ...

...instead stringing together a few court cases that may or may not be well-reasoned and supportive of the result here,...

...when everyone knows Congress did not intend to include sexual orientation and identity in the list of protected categories when it passed Title VII as part of the 1964 Civil Rights Act.

Simple question: why would ENDA be necessary if the existing law already provides Title VII rights based on sexual orientation and identity?

Congress will eventually, and likely sooner than we think I want, adopt ENDA.

You try to hide yours behind your whining about "the process" and think you're any less transparent than he is.

Why should the Civil Rights Act have been required to protect the right of African Americans to vote, when clearly the 14th and 15th Amendments were designed explicity for that purpose?

Long Run wrote:That I believe society should function a certain way, and specifically that agency bureaucrats and political appointees should not make law that exceeds the authority granted them by the legislature, does not mean I don't want things to change. Your apparent inability to understand that is confusing since you are obviously very intelligent.

The shortage of Mexicans is proving problematic

Long Run wrote:I read the opinion and was unpersuaded. In fact the political appointees on the EEOC board did not even attempt to justify their decision based on the intent of Congress, instead stringing together a few court cases that may or may not be well-reasoned and supportive of the result here, when everyone knows Congress did not intend to include sexual orientation and identity in the list of protected categories when it passed Title VII as part of the 1964 Civil Rights Act.

Simple question: why would ENDA be necessary if the existing law already provides Title VII rights based on sexual orientation and identity?

The answer is obvious, and simply highlights that democracy can be a messy and slow business sometimes. Congress will eventually, and likely sooner than we think, adopt ENDA. This particular decision may not be appealed, though, because the "loser" was a federal agency that presumably is in favor of this result (being part of the Administration which favors ENDA), which, of course, makes one wonder how effective the case was presented for the employer-agency.