What You Need to Know About the EEOC Decision

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July 17, 2015
Gregory R. Nevins

What Just Happened

The Equal Employment Opportunity Commission (EEOC) issued a landmark ruling this week that the sex discrimination provisions of Title VII of the 1964 Civil Rights Act protect employees who suffer discrimination because of their sexual orientation. 

The decision starts by noting the indisputable truth that sexual orientation discrimination against an individual only occurs because of that individual’s gender.  And even an explicit “no gays allowed” policy works this way because in order to label and exclude someone because that person is lesbian, gay or bisexual, you have to take into account the gender of the person in relation to the gender of the person  they love. News that “Robinson is marrying the mayor’s daughter” can’t be acceptable only if it’s Steve Robinson in accounting, but lead to discrimination against Stephanie Robinson in sales.  That’s sex discrimination.

And there’s another obvious road to the same result:  It’s been bedrock Title VII law for a quarter century that bosses can’t discriminate against workers seen as not conforming to common gender stereotypes. After Price Waterhouse refused Ann Hopkins partnership because they considered her too brash and assertive for a woman, the Supreme Court agreed that was sex discrimination. This principle applies whether an employee is seen as gender nonconforming just because she’s “butch,” for example, or because she’s engaged to another woman. 

What Happens Next

For government workers, the landscape looks like this:  Federal workers now have a clear, unquestioned claim for sexual orientation discrimination under Title VII, and can seek all Title VII remedies, including backpay and attorney’s fees.  Local government workers can seek similar relief under constitutional principles. But, state workers cannot get money to compensate for discrimination, basically being limited to reinstatement, other nonmonetary relief and attorney’s fees  -- unless and until courts adopt the EEOC’s analysis and confirm that they too can sue under Title VII.  This incongruous state of affairs, among other things, calls out urgently for Congressional action to enact explicit, effective sexual orientation (and gender identity) nondiscrimination protections for everyone. 

For those working for a private employer with 15 or more employees, the world looks like this: Even as I write this, the best corporate-side employment lawyers in the country are writing memoranda to their clients about the EEOC decision.  They probably are pointing out that it is both well-reasoned and thorough, but that it also has yet to be adopted by the federal courts.  Then comes the bottom line:  Employers could discriminate on the basis of sexual orientation and then argue in court that Title VII lets them do so, but it would be risky. Given the obvious logic the EEOC has laid out, such employers might well lose in court.

Why Does Congress Still Need to Act?
This decision brings welcome protections for some and a promising legal tool for many.  But, it also highlights why a broad, explicit federal antidiscrimination law is urgently needed.  First, this decision speaks only to employment.  It does not address housing, credit, education and other areas in which the sex discrimination analysis is less fully developed.  And it has even less bearing on public accommodations, where LGBT people experience pervasive discrimination and the current federal law has no ban on any forms of discrimination based on sex. 

We need and deserve comprehensive protections in federal law, and the public supports that.  But even just in the employment context, it’s now even clearer than ever that those members of Congress who have been blocking explicit sexual orientation job protections are doing employers no favor.  Everybody would benefit from explicit statutory protections. Explicit protections would provide clear guidance to employers, level the playing field among businesses and reduce the likelihood of costly discrimination cases. Most important, a clear and comprehensive federal bill would protect LGBT workers from being discriminated against in the first place.  It’s that simple. And it’s time.