July 16, 2015 at 6:49 pm EST | by Chris Johnson
Anti-gay workplace bias barred under existing law: EEOC
Chai Feldblum, gay news, Washington Blade, United States Equal Employment Opportunity Commission, gay news, Washington Blade

EEOC Commissioner Chai Feldblum (Washington Blade photo by Michael Key)

In a historic decision, the agency of the U.S. government charged with enforcing employment civil rights law determined on Thursday workplace discrimination against people for being gay, lesbian or bisexual constitutes gender discrimination under current law.

In the 17-page decision dated July 15, the U.S. Equal Employment Opportunity Commission finds discrimination based on sexual orientation in employment violates the provision prohibiting gender bias under Title VII of the Civil Rights Act of 1964. The name of the plaintiff in the case is redacted, but the defendant is Transportation Secretary Anthony Foxx in his role as overseer of the Federal Aviation Administration.

The EEOC reasons sexual orientation discrimination is sex discrimination because it necessarily entails treating employees less favorably because of gender and because such bias is associational discrimination based on gender.

“When an employee raises a claim of sexual orientation discrimination as sex discrimination under Title VII, the question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions,” the decision states. “It is not. Rather, the question for purposes of Title VII coverage of a sexual orientation claim is the same as any other Title VII case involving allegation of sex discrimination — whether the agency has ‘relied on sex-based considerations’ or ‘take[n] gender into account’ when taking the challenged employment action.”

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.

“We applaud the EEOC’s historic determination that sexual orientation is inherently a sex-based consideration, and we encourage all gay men, lesbians and bisexual Americans who face harassment or discrimination on the job to consult an attorney and file Title VII sex discrimination claims with the EEOC,” Almeida said. “It’s time for LGBT advocates to retire the incorrect talking point that gay Americans can get married at Noon and fired at 2:00 pm without legal recourse. That kind of unlawful firing falls clearly under Title VII’s ban on sex discrimination, and it is already illegal.”

Justine Lisser, a spokesperson for EEOC, said the vote on the commission was 3-2. Along with Feldblum, Chair Jenny Yang and Commissioner Charlotte Burrows voted in favor of the ruling, but Commissioner Victoria Lipnic and Commissioner Constance Barker voted against it.

According to the ruling, the complainant at the time of the events giving rise to the complaint was a temporary supervisory air traffic control specialist for FAA working at the international airport in Miami. The complainant filed a complaint on Dec. 21, 2012 when he learned he wasn’t selected for a permanent position as a frontline manager at the Miami Tower TRACON facility.

The complainant didn’t officially apply for the permanent position on the basis that he thought all temporary workers would be considered for an open permanent posting, but he knew management was seeking someone for the position and he was well qualified. The FAA contended the position was never filled, so no discrimination occurred.

The complainant alleged he wasn’t selected for the position because he’s gay and recounted incidents of negative comments about his sexual orientation from his supervisor, who was involved in the selection process. For example, the complainant said in May 2011 he talked about going to Mardi Gras with his partner and his supervisor replied, “We don’t need to hear about that gay stuff.” Complainant also said he was told he was being a “distraction in the radar room” when he mentioned his male partner in conversations.

Although the complainant initially filed a claim within the agency, the claim was dismissed in 2013 because it was filed too late and EEOC had not at that time made clear sexual orientation discrimination was covered under existing law. EEOC under its analysis reversed the determination of the agency.

“The narrative accompanying his formal complaint makes clear that Complainant believes that he was denied a permanent position because of his sexual orientation,” the ruling states. “The Agency, in its final decision, indicated it would process this claim only under its internal procedures conceding sexual orientation discrimination and not through…EEO complaint process. The Agency erred in this regard.”

As a result of the ruling, the agency is ordered to continue processing the remanded claims. The Transportation Department must submit its compliance report within 30 days of the completion of all ordered corrective action. If the department doesn’t comply, the complainant may petition the EEOC for enforcement. Complainant may also seek civil action, but in that case the administrative processing of the complaint and any petition for enforcement will be terminated.

It should be noted the sweeping impact of the ruling affects only employment law. The EEOC doesn’t have authority to determine whether gender provisions in housing and education law also cover sexual orientation discrimination. An upcoming LGBT non-discrimination comprehensive bill that Rep. David Cicilline (D-R.I.) and Sen. Jeff Merkley (D-Ore.) are set to introduce in Congress should explicitly prohibit sexual orientation and gender identity discrimination in these areas in addition to employment, public accommodations, federal programs and credit.

Chad Griffin, president of the Human Rights Campaign, praised the decision, but said the time has come to enact into federal law prohibiting LGBT discrimination in all areas.

“Discrimination has no place in America, plain and simple,” Griffin said. “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. Such a law would send a clear and permanent signal that discrimination against LGBT people will not be tolerated under any circumstances in this country, and we remain fully committed to making that happen.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

31 Comments
  • Excellent! And hopefully public accommodations et al will follow.

    The groundbreaking progress made by transgender plaintiffs in this approach that led to it’s expansion to sexual orientation shouldn’t be overlooked.

    • Well, if that’s true, it’s about time they did something to advance the rights of the community overall rather than hang on the coattails of all the groundwork down by gay and lesbian activists in decades past!

      Although it seems more a by product of their own interest rather than the purpose of those plaintiffs.

      • Yeah – they suck. Even when what they did gave you nationwide civil rights. Well – that’s true in your case.

        • I never said anyone sucked. You did!

          How did they give me nationwide civil rights exactly? It’s an opinion by EEOC that still has yet to bear fruit for anyone. Being gay isn’t about gender. EEOC typically deals with employment issues not all other forms of civil rights.

          What HRC says is nice and dandy. What happens in practice is what really matters.

          Next you’ll say we need to thank you for the Stonewall riots, striking down sodomy laws, ending DADT, hate crimes legislation and marriage equality.

          Until we have a law nationwide that bars discrimination in employment, housing, public accommodations and services I don’t feel we have nationwide civil rights!

          • Treating homosexuals equal in employment is a no-brainer, but I draw the line on having men/women use each other bathrooms.
            I suffer from paruresis (probably the only group which everyone feels free to discriminate against in hiring), and just the possibility of knowing an opposite-sex person could walk in on me changes my disorder from serious to nearly impossible.
            Btw, from my own experiences, paruresis occurs more often in the gay than the straight population.

          • Wow. I’ve never heard of your condition. But I learned something new today and the other term parcopresis. That does suck. Must be difficult to go through life like that when you can’t always run home to do your business especially if you have to travel away from home. Is there a cure or treatment for that?

            I never head of other gay men having that but likely nothing that most people are willing to discuss openly. I do not like using the stall when other people are in the bathroom. Hate leaving the stall when someone is in the bathroom, too. Seems embarrassing but I tell myself they have to use it too so don’t let it bother as much. If I must I will do what I have to do.

            The issue of who can use public bathrooms is not my personal fight so I remain neutral on that. I guess transgender people may see it like White Only versus Colored bathrooms.

          • Thank you for your heartfelt reply!
            Perhaps there could be a third bathroom for others which would include transgenders? If it was a single user with a locked door, that could be used by paruretics too. Now I’m getting confusing….
            There is no cure for the two pars – hypnosis, medications, surgery, talk therapy – all have only a minor effect. There is a group called the IPA which holds workshops across the world where one with this condition re-learns how to urinate with others nearby. I’ve been to four workshops over the years and I am now down to having this about 60%. Btw, that’s where I met the many gays who had this.

          • I don’t know if you’re going to get a third bathroom for transgender people when women complain there aren’t enough toilets for them in their bathrooms. Time will tell.
            The money to build and space required to provide it probably will be the biggest issue. But some trans may not want a separate bathroom based on equality issues but that’s just my guess. Life is such a struggle for everything!

            What causes the condition? Have you always had it or developed it suddenly?

          • Well – the first LGBT specific legislation passed was a birth certificate bill back in 1956 – so perhaps the story is slightly more nuanced than you believe. Illinois- a decade before Stonewall and two decades before the first bill addressing sexual orientation. Anti cross dressing laws were overturned before many sexual orientation laws passed.

            But sure, trans people didn’t exist and did nothing till last week.

          • I never heard of the birth certificate issue but I guess that is more a significant milestone to Trans people not GLB people. Trans people were not originally part of the GLB movement at least not as a distinct group in itself. I wasn’t aware of any and I still really don’t know anyone trans. You’re a minority within a minority. The “T” in GLBT was not added until much later than I came out.

            We didn’t even know people as trans until the latter half of the 20th century. Yes, a few high profile people changed sex but it seemed something rare and again GLB didn’t associate it with the movement. That term did not exist before then. Although you may have been there, we just assumed you were drag queens. Essentially you didn’t exist to most of us.

            Since I don’t cross-dress I never have seen that as an achievement to my personal rights as gay. We were fighting to be able to work, live where we wanted and be served like everyone else without being bashed.

          • Well – you should look into Magnus Hirschfeld and the start of organized gay rights – where trans people were part of that. The trans term was used then in the early 1900’s – to be fair – gays were called homophiles back in the day or inverts – even in gay orgs. That doesn’t mean gays didn’t exist. In the U.S. Johnathan Ned Katz originally called the Cercle Hermaphoditos in 1895 the first U.S. Group to fight for civil rights – turns out they were trans – at Paresis Hall in NYC- which was a gay establishment where they rented a space and were just part of the milieu.

            As far as Jenner or even Chaz being the first celebrity- there wasn’t a paper in the country that didn’t have Christine Jorgensen in it’s cover back in 1952? When no gays were getting that kind of coverage- she was also named women of the year by the U.S. Scandinavian Society in their annual event – rather like Jenner’s recent award.

            Back in 1972 – before the Miami Pres Conventions – the large gay orgs got the anti-cross dressing laws overturned because it was a gay issue and was a huge part of their political demonstrations. So- while it doesn’t effect you personally- it’s safe to say you’re not all gay men or lesbians (who would get arrested for cross dressing for wearing pants back in the day).

            I understand that you have your particular experience- this may not be universal or reflect history.

          • You’re well versed in history. I recently learned about Christine Jorgensen as that all happened before I was born so I never heard of her before.

            The 1972 event you discuss also is unknown to me. I was too young then to understand or care. I wasn’t paying attention to Watergate so I wouldn’t have paid attention to that assuming it was even televised on the news. I have a brief recollection of the Stone Wall riots on TV only because my father commented about faggots and their aggression as he was watching TV and I kind of pieced it together as being that event. No one discussed gay issues when I was growing up. Very taboo.

      • Here ya go sourpuss- from the mouth of HRC no less. It came from the Macy precedent.

        “Discrimination has no place in America, plain and simple,” said HRC President Chad Griffin. “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. Such a law would send a clear and permanent signal that discrimination against LGBT people will not be tolerated under any circumstances in this country, and we remain fully committed to making that happen.”

        In a 2012 decision in Macy v. Holder, the EEOC determined that discrimination based on an individual’s gender identity is sex discrimination and thus constitutes a violation of the Civil Rights Act.

      • I cannot imagine the difficulty that trans people must endure, and to attempt to belittle their contributions would be akin to belittling the efforts of slaves in the antibellum south.
        Being Gay and lesbian should endow one with the understanding of the plight of those with lesser status and rights. I guess that is not a given?

        • Really? Why should it? Racial minorities aren’t all endowed with the understanding of the plight of GLBT people despite their own similar experiences. Heck, there are still issues of racism and sexism within the GLBT community, too.

          You live in a world of idealism which simply isn’t reality. Everyone sadly has prejudices despite being victims of the prejudices of others. Some will try and overcome them while others never will.

  • All previous claims to EEOC have always been denied saying GLBT were not covered by existing federal laws. Why the sudden change in interpretation? What’s to prevent a more conservative head of the agency to reverse course and deny that GLBT are covered? It’s happened before under I think the Bush Administration’s appointee.

    I think the conclusion is good but without something in law that explicitly cites GLBT people are protected from discrimination or a SCOTUS ruling saying we are covered once and for all, I don’t feel we can count on this to be permanent solution.

    • According to the 10th Circuit Court of Appeals in an opinion handed down in 1996, “EEOC’s decisions [are] not reviewable under the
      Administrative Procedure Act (APA)”.

      The case was Bell v Flores, EEOC
      ( http://www.ca10.uscourts.gov/opinions/95/95-1455.pdf )

      If the APA has not been amended (and I don’t think it has), EEOC decisions are final to the specific case, and also to all like cases.

      • Thanks. That’s encouraging, too!

      • Well, the 10th circuit court of Appeals isn’t the final say is it? Their decision can be overruled by the SCOTUS. I never take anything for granted until it’s either codified in law like hate crimes protections.

        Even the SCOTUS rulings can never be taken for granted as final. We lost on sodomy the first time around before it was reversed.

        • Unless SCOTUS rules that the APA is UNconstitutional, the APA rules. SCOTUS could rule the decision by the EEOC doesn’t fall under the APA, but the clear language is that the APA says that EEOC decisions cannot be contested in courts of law.

          Or maybe you see any and all situations in the worst light possible? Commonly labeled the ‘Chicken Little’ perspective?

          • Hardly chicken little. Only devil’s advocate. Even when rulings go our way our enemies always find some other avenue to undermine them. I just don’t want people to think we’ve achieved it all and become complacent. No sooner do we get a major marriage equality win that they try and get a bill into law to undermine that achievement for example giving religious belief exemptions.

            I’ve seen a lot of things go against us over the decades and know our enemies don’t give up either. So excuse me for wanting air tight outcomes and being skeptical. I’ve also seen a lot of things go our way and haven’t ignored those achievements.

            Being any kind of minority that knows hatred and discrimination is never easy. We’re one of the last minorities people could get away with bashing until recently.

            Since we’ve never been able to rely on the EEOC before it’s hardly anything I’ve had personal experience with as such it’s a brave new world. Great if people truly benefit from that ruling going forward.

          • In other words, you have the commonly-called ‘Chicken Little’ attitude. ‘Anything that can go wrong will go wrong.’

            What part of the APA wording causes you to have that Chicken Little attitude?

          • Not in other words, in your words. Anything thing that can go wrong will go wrong is commonly called Murphy’s law.

            There was a song once that used to say: Got it all together don’t you baby? Murphy’s law is sure out to get you!

            I never heard it called Chicken Little Attitude until now.

            I’m not familiar with the APA either or it’s wording. Evidently you’re an expert on it. Did you write it too?

          • Try doing a bit of research.

            For example:
            ( https://en.wikipedia.org/wiki/Henny_Penny )

          • I do my bit of research on many issues. I just don’t find reading the APA an exciting way of spending my weekend.

    • Good point as to the need for specific (and comprehensive) LGBT civil rights legislation.

      But any administrative finding in favor of non-discrimination ups the ‘change considerations’ ante for future (opposing political party) administrations, of course. It adds the probability of an immediate civil rights challenge should a future administration wish to reverse it. So there’s still lots of value in it.

      • Fortunately – cases in court are starting to follow the same interpretation. But yes – it’s not a nondiscrim law and it only cover employment. Shh – don’t tell lnm3921 that this was a trans person as well.

        US Court Refuses to Dismiss Transgender Professor’s Sex Bias Suit July 15, 2015 • By Gay City News

        BY ARTHUR S. LEONARD |

        A federal district court judge has denied a motion to dismiss a sex discrimination claim filed by the Justice Department on behalf of a transgender woman against Southeastern Oklahoma State University, a public institution, alleging that she suffered discriminatory treatment and a denial of tenure after she announced her intent to transition.

        Judge Robin J. Cauthron of the US Western District of Oklahoma ruled on July 10 that allowing such an employment claim under Title VII of the 1964 Civil Rights Act is consistent with a growing body of judicial precedents, some sparked by an ongoing project by federal civil rights officials.

        http://gaycitynews.nyc/us-court-refuses-dismiss-transgender-professors-sex-bias-suit/

    • Just ONE more reason to motivate and to elect a Democratic President in 2016.
      The distinct likelihood that a Republican President could, and would, remove these and other protections, as well as hinder further LGBT protections, is undeniable.
      Vote Democratic! On this do not fail. Educate your friends and relatives.

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