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.”