By NOAM SCHEIBER, JULY 17, 2015, NY Times
The United States Equal Employment Opportunity Commission has ruled that workplace discrimination on the basis of sexual orientation is illegal under federal law, setting the stage for litigation aimed at striking down such practices.
The commission’s ruling, issued this week, hinged on the Civil Rights Act of 1964, which outlawed discrimination on the basis of sex in employment settings. In a 3-to-2 vote along party lines, the commission concluded that while the act did not explicitly prohibit discrimination against gays and lesbians, “an allegation of discrimination on the basis of sexual orientation is necessarily an allegation of sex discrimination.”
The commission did not widely publicize the ruling, dated Wednesday, but it quickly drew attention among advocacy groups and legal experts. “Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes or norms,” the document stated. “‘Sexual orientation’ as a concept cannot be defined or understood without reference to sex.”
The ruling applies to discrimination that may arise in hiring, firing and promotion decisions, and employees’ working conditions, such as claims of workplace harassment. It governs complaints that are filed with any office of the commission.
Though the ruling does not formally bind federal courts, the courts frequently defer to federal agencies when they interpret laws that come under their jurisdiction.
“In an area of law where we’re seeing rapid change, courts may well be interested in what the lead anti-discrimination agency has to say,” said Helen Norton, a professor at the University of Colorado Law School. “Courts wrestling with this question don’t have to feel that they’re first. There’s a government agency with expertise in anti-discrimination law that has taken this position.”
Several legal experts said the power of the ruling was that it simplified the legal standard for those alleging discrimination.
Under federal courts’ application of the existing Supreme Court precedent — the 1989 case Price Waterhouse v. Hopkins, in which a woman alleged discrimination arising from the fact that she didn’t present herself as stereotypically feminine — gay, lesbian and bisexual plaintiffs essentially had to graft arguments involving gender nonconformity onto their claims, however ill fitting.
For example, a gay man might argue that he was discriminated against for not appearing sufficiently masculine, but would have little success arguing that he was discriminated against simply for being in a same-sex relationship.
Under the commission’s ruling, plaintiffs could argue that they were discriminated against based on their sexual orientation. There is “no need to make a ‘gender stereotyping’ argument,” says Tico Almeida, president of the group Freedom to Work, which brings litigation on behalf of lesbian, gay, bisexual and transgender workers. “The commission says sexual-orientation discrimination is inherently sex discrimination.”
The ruling this week came after a similar ruling in the 2012 case of Macy v. Holder, in which the E.E.O.C. found that discriminating against employees on the basis of their gender identity was inherently sex discrimination and therefore outlawed under the Civil Rights Act of 1964. Since then, a handful of transgender plaintiffs have won claims in federal courts after invoking the ruling.
The case on which the commission ruled was first filed in 2012 by a temporary federal air traffic controller based in Miami who alleged that he was passed over for a permanent position because he was gay. In 2013, his agency’s Equal Employment Opportunity Office ruled that the complaint was invalid in part because Title VII of the Civil Rights Act of 1964, which the worker invoked in his complaint, did not apply to sexual orientation.
A 1998 executive order prohibiting discrimination based on sexual orientation covers much of the government’s civilian work force, but the Federal Aviation Administration, the employer in the case, is outside its purview.
The worker, whose name was omitted from the ruling, then appealed to the federal commission in Washington, which accepted his argument about the relevance of the Civil Rights Act of 1964.
Democrats have held a majority on the five-member commission since early in President Obama’s tenure, except for periodic vacancies that left the commission split evenly between the two parties. All three Democrats voted to approve the ruling, while both Republicans voted against.
While the ruling carries formal weight only in the area of employment, it could also pave the way for courts to rule in favor of gay, lesbian and bisexual plaintiffs in issues of housing and lending, where more recent civil rights laws also prohibit sex discrimination, Professor Norton said. (Federal law is silent about sex discrimination in areas like accommodations and programs that receive federal funds, outside of education.)
The ruling comes in the face of a debate within the lesbian, gay, bisexual and transgender movement about how best to build on the momentum of the Supreme Court’s decision last month affirming a right to same-sex marriage. While there is a consensus that discrimination against gays and lesbians in the workplace and elsewhere should be the next battleground, there is disagreement on the best strategy for making progress.
Some activists argue that, as the law stands today in most states, gay Americans “can be married at 10 a.m., fired from your job by noon and evicted from your home by 2 simply for posting that wedding photo on Facebook,” as Chad Griffin, the president of the Human Rights Campaign, said in a recent television interview.
These activists assert that the best remedy is for Congress to pass a nondiscrimination bill, which would also cover gender identity, although they support litigation and feel the two strategies are complementary. They worry about leaving a sweeping policy decision in the hands of the Supreme Court, uncertain how it would rule.
Other groups like Mr. Almeida’s argue that most forms of discrimination against gays and lesbians are already illegal under federal law and that the movement could bring about progress most quickly by making litigation a priority. Most of these activists contend that legislation is also necessary, but that it is a long way off given the Republican-controlled Congress. They argue that litigation produced most of the pivotal victories for the movement on the marriage issue, and that Chief Justice John G. Roberts Jr., who dissented from the court’s recent same-sex marriage decision, expressed sympathy during those oral arguments for advancing gay rights through sex-discrimination claims.
The commission ruling appears to somewhat strengthen the case for fighting discrimination in the courts rather than on Capitol Hill.
“If you look at our movement’s success, we are a lot better at litigating than we are at lobbying,” Mr. Almeida said. “We should take the E.E.O.C. decision and run with it by turning to the federal courts to win workplace protections in all 50 states.”