Gay, lesbian, and transgender activists have been trying for decades to push Congress to expand workplace protections against discrimination to cover them and their peers. In the meantime, the U.S. Equal Employment Opportunity Commission (EEOC) has found a workaround of sorts, involving a rather novel interpretation of existing protections under Title VII of the Civil Rights Act of 1964.
The commission is now claiming that sexual orientation and gender identity are both protected under the aegis of the word "sex."
The EEOC is arguing that federal law prohibiting discrimination on the basis of whether an employee is a man or a woman also prohibits discrimination on the basis of sexual orientation and gender identity. The justification presented by the EEOC is that previous judicial precedents have covered same-sex harassment or harassment based on perceptions of a worker's "failure to conform to gender stereotypes." Yet even that broad interpretation is technically about sex, not sexual orientation.
The EEOC also lists court precedents, such as the 1998 Supreme Court decision Oncale v. Sundowner Offshore Services. That unanimous ruling extended workplace sexual harassment protections to same-sex situations, meaning that men could be found guilty of sexually harassing other men, but neither man needed to be gay for such a dynamic to happen.
The commission's decision is not binding and could be overruled by the courts, which have taken a dim view in recent years of other EEOC legal arguments and have tossed several lawsuits out.