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.
The primary consideration is whether sex/gender was taken into account
When an employee raises a claim of sexual orientation discrimination as sex discrimination under Title VII, the question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. It is not. Rather, the question for purposes of Title VII coverage of a sexual orientation claim is the same as any other Title VII case involving allegations of sex discrimination—whether the agency has “relied on sex-based considerations” or “take[n] gender into account” when taking the challenged employment action.
Decision, p. 5 (footnote omitted).
Sexual orientation is inherently a sex-based consideration
Indeed, we conclude that sexual orientation is inherently a “sex-based consideration,” and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII. A complaint alleging that an agency took his or her sexual orientation into account in an employment action necessarily alleges that the agency took his or her sex into account.
Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. “Sexual orientation” as a concept cannot be defined or understood without reference to sex. A man is referred to as “gay” if he is physically and/or emotionally attracted to other men. A woman is referred to as “lesbian” if she is physically and/or emotionally attracted to other women. Someone is referred to as “heterosexual” or “straight” if he or she is physically and/or emotionally attracted to someone of the opposite-sex. See, e.g., American Psychological Ass’n, “Definition of Terms: Sex, Gender, Gender Identity, Sexual Orientation” (Feb. 2011), available at http://www.apa.org/pi/lgbt/resources/sexuality-definitions.pdf. (“Sexual orientation refers to the sex of those to whom one is sexually and romantically attracted.” (second emphasis added). It follows, then, that sexual orientation is inseparable from and inescapably linked to sex and, therefore, that allegations of sexual orientation discrimination involve sex-based considerations. One can describe this inescapable link between allegations of sexual orientation discrimination and sex discrimination in a number of ways.
Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex. For example, assume that an employer suspends a lesbian employee for displaying a photo of her female spouse on her desk, but does not suspend a male employee for displaying a photo of his female spouse on his desk. The lesbian employee in that example can allege that her employer took an adverse action against her that the employer would not have taken had she been male.
Sexual orientation discrimination is associational discrimination based on sex
Sexual orientation discrimination is also sex discrimination because it is associational discrimination on the basis of sex. That is, an employee alleging discrimination on the basis of sexual orientation is alleging that his or her employer took his or her sex into account by treating him or her differently for associating with a person of the same sex. For example, a gay man who alleges that his employer took an adverse employment action against him because he associated with or dated men states a claim of sex discrimination under Title VII; the fact that the employee is a man instead of a woman motivated the employer’s discrimination against him. Similarly, a heterosexual man who alleges a gay supervisor denied him a promotion because he dates women instead of men states an actionable Title VII claim of discrimination because of his sex.
Decision p. 8.
Sexual orientation is sex discrimination because it is based on gender stereotypes
Sexual orientation discrimination also is sex discrimination because it necessarily involves discrimination based on gender stereotypes. In Price Waterhouse, the court reaffirmed that Congress intended Title VII to “strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” 490 U.S. at 251 (quoting Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978)). In the wake of Price Waterhouse, courts and the Commission have recognized that lesbian, gay, and bisexual individuals can bring claims of gender stereotyping under Title VII if such individuals demonstrate that they were treated adversely because they were viewed—based on their appearance, mannerisms, or conduct—as insufficiently “masculine” or “feminine.” But as the Commission and a number of federal courts have concluded in cases dating from 2002 onwards, discrimination against people who are lesbian, gay, or bisexual on the basis of gender stereotypes often involves far more than assumptions about overt masculine or feminine behavior.
Sexual orientation discrimination and harassment “[are] often, if not always, motivated by a desire to enforce heterosexually defined gender norms.” Centola v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass. 2002). The Centola court continued:
In fact, stereotypes about homosexuality are already related to our stereotypes about the proper roles of men and women. While one paradigmatic form of stereotyping occurs when co-workers single out an effeminate man for scorn, in fact, the issue is far more complex. The harasser may discriminate against an openly gay co-worker, or a co-worker that he perceives to be gay, whether effeminate or not, because he thinks, “real” men should date women, and not other men.
Decision, pp. 9-11 (footnotes omitted).
Why is this decision so important?
To understand of the importance of this decision, it is helpful to know about the EEOC’s role in enforcing federal anti-discrimination laws. The EEOC is the primary government agency tasked with enforcing federal employment discrimination laws. Among other things, the EEOC investigates complaints of discrimination, files lawsuits on behalf of harmed individuals, and promulgates regulations interpreting Title VII and other anti-discrimination laws.
This decision should extend protections to workers in all 50 states, so long as their private-sector employer has 15 or more employees or they work for governmental employers. (In California, the FEHA prohibits such discrimination by employers with five or more employees and harassment by employers with even one employee.)
The decision does not provide certainty, however. Employers can still challenge the EEOC’s interpretation in court. Courts usually give deference to the EEOC’s interpretation of Title VII, but some courts may not accept the EEOC’s reasoning. In the meantime, LGBT activists and allies are working to help draft and pass a comprehensive federal law banning sexual orientation discrimination, including in employment, housing, and credit. This will provide certainty to LGBT employees nationwide that they are protected from discrimination. For now, the EEOC’s decision in this case, coming on the heels of the Supreme Court’s decision in Obergefell, is cause for celebration!
Update 8/4/15: This memo from the Office of EEOC Commissioner Chai Feldblum titled “Thoughts on Next Steps for the LGBT Community Post-Marriage Equality” is worth a read.