The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Supreme Court may not think bans on gay marriage are sex discrimination, but the Equal Employment Opportunity Commission thinks anti-gay discrimination in the workplace is. The EEOC, in a 3-2 vote, has concluded that Title VII of the 1964 Civil Rights Act forbids sexual orientation discrimination on the job because it's a form "sex" discrimination, which is explicitly forbidden. The opinion is 17 pages long, although the portion dealing with anti-gay employment discrimination is only pp. 5-14. The opinion follows by three years a decision from the EEOC that discrimination based on gender identity is also sex discrimination. That ruling on transgender employment rights has been broadly accepted by the federal courts.
The EEOC's view on sexual orientation, however, runs counter to the rulings of several circuit courts. These courts have reasoned that "sexual orientation" is not among the list of prohibited bases for employment action, that Congress did not intend to eliminate anti-gay discrimination when it enacted Title VII, and that Congress has repeatedly refused to add "sexual orientation" to employment protections.
The EEOC calls these earlier circuit court decisions "dated," and some of them have been undermined by subsequent precedents in the same circuits recognizing that gender stereotyping, including gender stereotypes evidenced by anti-gay comments, is sex discrimination. Indeed, the Commission argues, the concept of sex discrimination as it has been elucidated over the years by the federal courts, including the Supreme Court, is broad enough to encompass sexual orientation discrimination. Such discrimination, it notes, rests on stereotypes about how men and women should behave and punishes employees for their association with others of the same sex. "'Sexual orientation' as a concept," the commission held, "cannot be defined or understood without reference to sex."
The interesting question now is how many circuit courts will go along with the EEOC's new interpretation of Title VII. The EEOC's views on the scope of Title VII are considered persuasive, but not binding, authority on the courts. The next president could appoint commission members who feel differently about the meaning of Title VII, and they could reverse this divided opinion. Either way, a circuit split on the issue could be resolved by the Supreme Court in the next few years.
If the EEOC's ruling sticks, it will have accomplished what more than 40 years of legislative advocacy in Congress could not: full protection of gay men and lesbians from job discrimination throughout the United States. But the ultimate influence of the commission's ruling could be even broader. Sex discrimination is forbidden by federal law in housing and in education, as well as in other areas. If anti-transgender and anti-gay discrimination are forms of sex discrimination in employment, why wouldn't they also be forms of sex discrimination in housing and education? While the EEOC isn't charged with interpreting and enforcing those other federal laws, the commission's reasoning could easily be applied beyond employment.