Anti-gay workplace bias barred under existing law: EEOC

Staff Report

The Equal Employment Opportunity Commission (EEOC), which enforces federal employment anti-discrimination laws, ruled in July that discrimination against an individual because of that person’s sexual orientation is discrimination because of sex, and there prohibited under Title VII of the Civil Rights Act of 1964. Title VII prohibits employment discrimination based on race, color, religion, sex and national origin. It does not address discrimination in housing and other areas.

The EEOC said that employers and employees often have questions about whether discrimination related to LGBT status is prohibited under the law. The July change said, “While Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity in its list of protected bases, the Commission, consistent with case law from the Supreme Court and other courts, interprets the statute's sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity.”

The Commission started a process in 2012, making coverage of LGBT individuals a priority under Title VII’s sex discrimination provisions. In 2012, the EEOC held that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex, and therefore prohibited under the law.

In the historic decision in July of this year, the Commission held that “…discrimination against an individual because of that person's sexual orientation is discrimination because of sex and therefore prohibited under Title VII.” The decision came in a case from the federal Department of Transportation.

Guidance issued said, “Consistent with case law from the Supreme Court and other courts, the Commission takes the position that discrimination against an individual because that person is transgender is a violation of Title VII's prohibition of sex discrimination in employment. Therefore, the EEOC's district, field, area and local offices will accept and investigate charges from individuals who believe they have been discriminated against because of transgender status (or because of gender identity or a gender transition).

“The Commission also takes the position, consistent with case law from the Supreme Court and other courts referenced at the previous link, that discrimination against an individual because of that person's sexual orientation is a violation of Title VII. The Commission accepts and investigates charges alleging sexual-orientation discrimination in employment.”

As part of its process, the EEOC in January 2013 began tracking information on charges filed alleging discrimination related to gender identity and/or sexual orientation. They reported, “In the final three quarters of FY 2013 (January through September), EEOC received 643 charges that included allegations of sex discrimination related to sexual orientation and 147 charges that included allegations of sex discrimination based on gender identity/transgender status.

In FY 2014, the EEOC received 918 charges that included allegations of sex discrimination related to sexual orientation and 202 charges that included allegations of sex discrimination based on gender identity/transgender status. For the first two quarters of FY 2015, EEOC received 505 charges that included allegations of sex discrimination related to sexual orientation and 112 charges that included allegations of sex discrimination based on gender identity/transgender status.”

The Washington Blade, an LGBT newspaper in the nation’s capital, reported, “The determination, which directs agencies to process sexual orientation claims as gender discrimination, builds off the 2012 decision EEOC reached in Macy v. Holder, which affirmed discrimination against people for being transgender violates the gender provisions of Title VII. Chai Feldblum, a lesbian member of the commission, had said the Macy ruling also enables gay, lesbian and bisexual workers to seek relief under current law, but the EEOC hasn’t made that clear until now.

“Tico Almeida, president of Freedom to Work, praised the decision and said LGBT advocates should relay the information that even without explicit protections, current law prohibits employment discrimination on the basis of both sexual orientation and gender identity.”

“This landmark opinion from the EEOC confirms what we have long argued in our cases,” said Greg Nevins, Counsel and Employment Fairness Strategist for Lambda Legal in a statement. “Discriminating against gay, lesbian and bisexual employees violates federal law. Given the clarity and logic of this opinion, most courts are likely to stop simply referring to old, illogical rulings about Title VII coverage.”

Chad Griffin, President of the Human Rights Campaign, said, “Discrimination has no place in America, plain and simple.

“This historic ruling by the EEOC makes clear they agree workplace discrimination on the basis of sexual orientation – much like gender identity –is illegal.

“While an important step, it also highlights the need for a comprehensive federal law permanently and clearly banning LGBT discrimination beyond employment to all areas of American life. We remain fully committed to making that happen.”

The Gayly – August 3, 2015 @ 12:10pm.