Gay in the Workplace? EEOC Says Your Job is Safe

On Thursday, the Equal Employment Opportunity Commission ruled that Title VII of the Civil Rights Act bars employment discrimination based on sexual orientation—a move that will hugely advance the rights of lesbian, gay and bisexual workers in all 50 states. Until now, many states still legally allowed businesses to fire workers because of their sexual orientation.

At the heart of the ruling is the understanding that “sexual orientation is inherently a ‘sex-based consideration,’” meaning anti-gender-discrimination provisions are being extended to queer Americans. (In 2012, the EEOC declared that trans women and men are protected by the Title VII’s sex discrimination provisions).

The commission recognized that Title VII does not explicitly ban sexual orientation-based discrimination, writing “the question is not whether sexual orientation is explicitly listed…as a prohibited basis for employment actions. It is not.” The true question, rather, is “whether the agency has ‘relied on sex-based considerations’ or ‘take[n] gender into account’ when taking the challenged employment action.”

Sexual orientation-based discrimination is an extension of sex-based discrimination because, as the commission writes, it is “premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. ‘Sexual orientation’ as a concept cannot be defined or understood without reference to sex.”

Further, the EEOC found that sexual orientation-based discrimination “is associational discrimination on the basis of sex.” For instance, when an employer fires a gay employee, the employer is discriminating against the employee for associating with a person of the same sex.

Finally, the commission noted that while the original language under Title VII did not explicitly cite sexual orientation discrimination, there is no reason to conclude that it excludes protections for queer workers. “‘Statutory prohibitions often go beyond the principal evil [they were passed to combat] to cover reasonably comparable evils,’” cited the commission. “Interpreting the sex discrimination prohibition of Title VII to exclude coverage of lesbian, gay or bisexual individuals who have experienced discrimination on the basis of sex inserts a limitation to the text that Congress has not included.”

The commission’s ground-breaking ruling—approved by a 3-2 vote—did not pass without contention. Though it currently only applies to federal employees’ claims directly, it will also apply to private companies with more than 15 employees.

Until the Supreme Court issues a definitive ruling, lower courts can still accept or reject the commission’s interpretation. However, federal courts are known to take EEOC rulings into serious consideration.

Photo courtesy of Flickr user Benson Kua licensed under Creative Commons 2.0




Julia Robins is a Ms. editorial intern and a graduate of William & Mary. Follow Julia on Twitter @julia_robins.