July 20, 2015 at 6:32 pm EDT | by Chris Johnson
Feldblum explains new gay employment protections
Chai Feldblum, gay news, Washington Blade, United States Equal Employment Opportunity Commission, gay news, Washington Blade

Chai Feldblum serves on the U.S. Equal Employment Opportunity Commission. (Washington Blade photo by Michael Key)

The U.S. Equal Employment Opportunity Commission delivered a landmark ruling last week establishing that workplace discrimination against gay, lesbian and bisexual people is prohibited under current law. Part of the credit for the decision goes to Chai Feldblum, a longtime LGBT rights advocate and lesbian member of the commission.

Feldblum was in the 3-2 majority on the five-member commission in its decision for Complainant v. Foxx, which found employment discrimination based on sexual orientation constitutes gender discrimination under Title VII of the Civil Rights Act of 1964. Three years ago, she was also part of the unanimous ruling in Macy v. Holder, which found that transgender discrimination is illegal under Title VII.

The decision caps off decades of work in LGBT activism from Feldblum, including HIV/AIDS work, fighting for openly gay service in the U.S. military and drafting an initial version of the Employment Non-Discrimination Act.

In an email Q&A, Feldblum answered questions for the Washington Blade raised by readers in the aftermath of the historic EEOC decision in favor of gay, lesbian and bisexual workplace rights.

Washington Blade: Everyone is saying this ruling is big. How sweeping is it and whom does it cover? Is it just federal jobs?

Chai Feldblum: The ruling is as significant as people are saying it is. The Commission’s decision that sexual orientation discrimination is always sex discrimination under Title VII now applies across all of the Commission activities, including charges brought to us by employees and applicants who work in the private sector or for state or local governments. While the particular order in this case involves only the Department of Transportation and the complainant, the legal analysis in this opinion affects all of the EEOC’s work – both for federal workers and private sector workers.

Blade: If I feel I’ve experienced workplace discrimination based on my sexual orientation, what steps can I take to seek relief? What kind of relief can I obtain?

Feldblum: Any person who has experienced discrimination on the basis of sexual orientation should file a charge with the EEOC. The EEOC website at www.eeoc.gov has information on how to do that. But the EEOC cannot help everyone who comes to us. We just don’t have enough resources. So the best idea is to find a lawyer who can help you, if you can. You will still have to file a charge with the EEOC before you can go to court, but a good lawyer can help you. The relief you can get will depend on the type of discrimination you have suffered. But the type of relief that individuals have gotten in the past has included reinstatement in a job, backpay for a job lost unfairly, and/or money damages for harm suffered.

Blade: Is there any reason to add sexual orientation and gender identity to federal non-discrimination laws now — either through ENDA or some other means?

Feldblum: Of course there is a reason to add sexual orientation and gender identity to federal non-discrimination laws now. What the EEOC has done is offer a chance to bring cases of LGBT discrimination under existing law. That is a very big deal. But that does not remove the need for an explicit federal law that would give LGBT people and employers across the country absolute certainty that discrimination on the basis of sexual orientation and gender identity will be prohibited. That is what adding sexual orientation and gender identity to federal non-discrimination laws would do and that would be a very important thing to achieve.

Blade: If Title VII has been around since 1964, why is EEOC just now finding it applies to anti-gay employment discrimination?

Feldblum: LGBT people filed claims with the EEOC as early as the 1970s claiming they had suffered sex discrimination. They were right. But it took time for the EEOC and the courts to see the logic of their position. The EEOC rejected those claims in the 1970s for the same reason that courts rejected them – namely, the agency did not believe that Congress intended to cover gay and transgender people under Title VII. But as the Supreme Court made clear in later cases, the question is not what Congress intended when it passed Title VII in 1964, but rather what the actual words of the law prohibit. It took time for the EEOC and the courts to apply that prohibition to cover discrimination against an employee because of the sex of the person that employee was attracted to. But it is actually a very simple and logical application of the words of the law.

Blade: What about religious organizations? Unlike the 2013 version of ENDA, will the ruling help protect secular employees of religious schools and medical facilities?

Feldblum: Our opinion does not deal with the issue of religious organizations, since obviously the Department of Transportation is not a religious organization. Title VII does have an exception that permits religious organizations to discriminate on the basis of religion in employment and I expect we will see future cases in the private sector raising those issues.

Blade: It seems the vote on the decision was 3-2. Why was there dissent and does it change anything substantively?

Feldblum: There is no substantive impact as a result of the vote being 3-2. The decision represents the position of the Commission. As for the reasons for dissent, I am not in a position to speak for my colleagues.

Blade: Does EEOC really have the last word on this? Is it possible for the Supreme Court to overturn the decision?

Feldblum: The Supreme Court cannot overturn this particular decision because an agency does not have the right to appeal a decision of the Commission to a court. But I fully expect that the legal theory we adopted in this case will be debated in many other cases that will go to court, including cases that the EEOC may bring where we have a charge in the private sector. But before the Supreme Court weighs in, we will get rulings from a lot of the lower courts. I feel optimistic that many of those courts will rule the same way we have ruled, given the compelling logic of our position.

Blade: What about housing and public accommodations? Can EEOC find that existing law prohibits anti-LGBT discrimination in the areas based on gender protections?

Feldblum: No. The EEOC has jurisdiction only over employment. But other federal agencies that enforce sex discrimination provisions often look to our interpretation for guidance in interpreting the laws they enforce. Many of them did that after we issued our decision in Macy v. DOJ in 2012 that discrimination on the basis of transgender status was always a form of sex discrimination. Other agencies may choose to do the same thing with regard to our decision that sexual orientation discrimination is always a form of sex discrimination.

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

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