July 2015

When the Supreme Court recognized last month in Obergefell v. Hodges, 576 U.S. ___ (2015) that the fundamental right to marry applies to same-sex couples, Americans rejoiced. The Court’s opinion reflected the tipping point we have reached as a nation with broad public acceptance of LGBT rights.

But civil rights activists and allies were quick to point out that there is more work to be done. Pundits observed that in some states, a gay couple could be married in the morning and fired from their jobs for being gay hours later. Indeed, LGBT people in many states still lack protections from discrimination and harassment in employment, housing, and education. Sexual orientation discrimination in employment is not explicitly prohibited under federal law. In California, we are lucky to have the Fair Employment and Housing Act, Government Code section 12940 et seq., which has, since 2000, prohibited discrimination and harassment based on sexual orientation in employment and housing. LGBT people in other states have not been so fortunate.

LGBT workers are protected from sexual orientation discrimination under Title VII

Thanks to a landmark decision by the federal Equal Employment Opportunity Commission (EEOC), however, millions more LGBT workers now have some protections. In a July 15, 2015 decision, the EEOC held that sexual orientation discrimination is unlawful under Title VII of the Civil Rights Act of 1964 (Title VII). Title VII applies to employers with at least 15 employees. It prohibits discrimination, harassment, and retaliation based on protected categories, including with respect to hiring, firing, promotions, training, wages, and benefits.

Title VII prohibits discrimination based on sex, race, color, religion, and national origin; it does not explicitly cover discrimination based on sexual orientation. In a 3-2 decision, the EEOC reasoned that sexual orientation discrimination is nevertheless prohibited by Title VII because it is a subset of sex discrimination. The EEOC determined that an air traffic controller who alleged that he was denied a promotion because of his sexual orientation could pursue his claim of sex discrimination. While the 17-page decision is worth reading in full, the excerpts below capture the EEOC’s reasoning.