Antonin Scalia

EEOC Attempts to Administratively Implement Protections Against Anti-Gay Discrimination

Wants to treat a law passed in 1964 as though it also covers sexual orientation


"Get out there and file those reports, son!"
Credit: Andreypopov |

"Gender expression and sexual orientation are not the same thing." "Gender expression and sexual orientation are not the same thing." "Gender expression and sexual orientation are not the same thing." This concept-theory-belief has been beaten into the heads of anybody who approaches discussion about gender identity, particularly in connection with transgender issues or anything genderbending. It has been a frequent corrective refrain, especially when people get confused about what it means to be transgender. Whether Caitlyn Jenner was still attracted to women or to men was brought up in her first interview after announcing her transition, and the catechism was repeated: "Gender expression and sexual orientation are not the same thing."

But never mind. If the government treats gender and sexual orientation as the same thing in a way that benefits the interests of LGBT activists, then go for it! The U.S. Equal Opportunity Commission (EEOC) has decided that Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination on the basis of sex (as well as race, color, religion, and national origin), also covers sexual orientation.

Here is how sex is handled in the definitions section of the law:

The terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-­related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title [section 703(h)] shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.

It is very clearly talking about discriminatory practices that occur on the basis of one's gender. There is nothing here to indicate that sexual orientation was any sort of consideration at the time, because it was 1964 and the federal government saw gay people as deviant threats to be driven out of society.

But now the EEOC wants to just decide that this law should apply to anti-gay and anti-transgender discrimination and apply it to cases beyond the legislation's initial intent. In a post on EEOC's site, they note:

Consistent with case law from the Supreme Court and other courts, the Commission takes the position that discrimination against an individual because that person is transgender is a violation of Title VII's prohibition of sex discrimination in employment.  Therefore, the EEOC's district, field, area and local offices will accept and investigate charges from individuals who believe they have been discriminated against because of transgender status (or because of gender identity or a gender transition). 

The Commission also takes the position, consistent with case law from the Supreme Court and other courts referenced at the previous link, that lesbian, gay, and bisexual individuals  may bring valid Title VII sex discrimination claims.  The Commission accepts and investigates charges alleging sexual-orientation discrimination, such as claims of sexual harassment or allegations that an adverse action was taken because of a person's failure to conform to sex-stereotypes.

Emphasis added. The EEOC lists a page of these court decisions that it believes bolsters its position that it can intervene in cases of anti-gay discrimination. But when you read through the cases, what they're often really about is what's in the bold text: harassment or discrimination on the basis of whether somebody properly conforms to perceived gender expressions and roles, not sexual orientation. Under such parameters, a heterosexual man could face harassment for being too feminine, and a heterosexual woman could face harassment for having masculine traits. This has nothing to do with actual sexual orientation. Gender expression and sexual orientation are separate things.

The EEOC also notes the 1998 Supreme Court decision Oncale v. Sundowner Offshore Services, in which the justices ruled unanimously that Title VII's sexual harassment protections included protection against same-sex harassment as well. But, paradoxically, such a ruling is neutral to the sexual orientation of those involved. The justices (and the decision was written by Antonin Scalia) ruled that "sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements." In other words, neither gender nor sexual orientation of the participants actually matter—just that sexual harassment is taking place. (As a fun aside, Scalia also authorizes football coaches to smack their players on the butts when they're heading to the field.)

You'd think people might be concerned that a government organization like the EEOC just shoved gender and sexual orientation in a blender together and hit puree, but it doesn't appear to be the case. The Human Rights Campaign put out a release hailing the announcement:

"Discrimination has no place in America, plain and simple," said HRC President Chad Griffin. "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."

But there can be unintended consequences of letting the government's definitions drift that can come back to haunt. For example, there was a case in Colorado last year where a gay bar was cited for discriminating against a gay man and refusing him entry because he was dressed up in drag.

The EEOC's ruling is not binding and courts can overrule them. The HRC declares the ruling "persuasive," but the fact is, previous efforts by the EEOC to administratively expand its own authority have been struck down in recent years. And, frankly, the courts have not always been polite about it. Walter Olson, a Cato fellow and contributing editor to Reason, has documented the agency's history of getting its decisions overruled by judges appointed by both Republican and Democratic administrations. Read more about the judicial smackdowns when EEOC attempts to abuse its authority here. Olson also weighs in on this new announcement here.