Sexual Orientation Discrimination in Employment is Ilegal, According to the EEOC

The Equal Employment Opportunity Commission ruled on July 16, 2015 that employment discrimination based on sexual orientation is illegal under existing federal law: Title VII of the Civil Rights Act of 1964. Title VII explicitly prohibits employment discrimination on the basis of race, color, religion, sex, and national origin. Although the EEOC’s ruling should be celebrated as a victory for the LGBT (lesbian, gay, bisexual, and transgender) community, there is one legal issue: courts still have the capacity to reject it.

The Case that Spotlighted Sexual Orientation Discrimination

The EEOC is a federal agency that enforces civil rights laws (e.g., the Civil Rights Act, the Americans with Disabilities Act). If you face discrimination at work, you can file a charge with this agency. They will investigate your complaint, attempt to remedy it, and, if necessary, grant you a Notice of Right-to-Sue so that you may bring a lawsuit against your employer.

The EEOC addressed the issue of sexual orientation discrimination after an air traffic control specialist from Florida brought a complaint against Secretary of Transportation Anthony Foxx. In a 3-2 decision, the EEOC concluded that discrimination based on sexual orientation is a form of sex-based discrimination and, therefore, is prohibited under the “sex” provision of Title VII. The 17-page opinion states that “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.”

The Reasoning Behind the Sexual Orientation Discrimination Ruling

To better understand this reasoning, suppose Susan has a photo of her wife on her desk at work. Her employer is not happy with Susan because she is married to a woman. In fact, he refuses to give her a promotion. He does not have a problem with male employees who have photos of their wives on their desks. The Title VII issue lies here: Susan’s employer took into consideration her sex when he discriminated against her. Although sexual orientation discrimination is not explicitly prohibited by Title VII, sex discrimination is. If sexual orientation discrimination is a form of sex discrimination, then people of all sexual orientations deserve full protection under this already-existing federal law.

Sexual Orientation Discrimination: A Matter to be Decided by the Courts

It is important to remember, however, that the EEOC is not a court. Although it came to a “decision,” it is up to the federal circuit courts to accept or reject it. Unless the Supreme Court was to rule on this issue, the EEOC’s ruling is not binding to the lower courts.

We can expect some variation in the way courts handle cases involving sexual orientation discrimination. If you bring a sexual orientation discrimination lawsuit to court today, there is a chance that it will be dismissed. Several courts have argued that Congress did not intend to eliminate sexual orientation discrimination when it passed Title VII. If all goes well for the LGBT community, the courts will agree with the EEOC and allow for individuals to take legal action against their employers when they are discriminated against because of their sexual orientations.

In the recent past, the EEOC held that discrimination based on transgender status (also referred to as “gender identity discrimination”) was a form of sex discrimination prohibited under Title VII. If both these rulings are widely accepted by the federal courts, it will be a big step forward for the LGBT community. It is now up to the courts to agree or disagree with this historic ruling; time will tell how they react.

Keep in mind, certain Pennsylvania municipalities, including Pittsburgh and Philadelphia, have their own protections in place for LGBT citizens. If you have been discriminated against at work because of your sexual orientation, contact KM&A. We represent clients across Pennsylvania and our consultations are always free. You can call us in Pittsburgh at 412-626-5626 or in Philadelphia at 215-618-9185 or email us at lawyer@lawkm.com.