BY AJ TRAGER
WASHINGTON D.C. – The United States Equal Employment Opportunity Commission July 15 issued a decision that employment discrimination based on sexual orientation is a form of sex discrimination that is outlawed by existing federal law.
The EEOC is responsible for enforcing anti-discrimination laws in the workplace and has held in a 3-2 decision following a complaint brought by a Florida-based air traffic control specialist against Secretary of Transportation Anthony Foxx that discrimination against LGB employees is sex discrimination, specifically banned by the Civil Rights Act of 1964.
“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 EEOC explains. “It follows, then, that sexual orientation is inseparable from and inescapably linked to sex and, therefore, that allegations of sexual orientation discrimination involves sex-based considerations.”
In 2012, the EEOC issued a similar ruling that discrimination based on gender identity or expression is also a form of sex discrimination that violates federal law, which set an important precedent for protecting transgender employees.
“The fight for basic civil rights protections for lesbian, gay and bisexual people just took a big step forward,” said James Esseks, American Civil Liberties Union’s LGBT Project Director. “Lesbian, gay and bisexual people all across the country now have a place to turn if an employer fires them because of their sexual orientation. This is a significant development because protections for gay and transgender people are almost nonexistent in federal law, and 28 states also lack state-level protections.”
Both rulings are landmark advances for civil rights. Now anyone who works for an employer with 15 or more employees can file a charge of sex discrimination with the EEOC if they can prove they were discriminated against because of their sexual orientation or gender identity or expression.
Despite the EEOC ruling, neither Congress nor state legislatures have passed explicit civil rights protections for LGBT employees. The ACLU argues that these protections should not be left to the courts because they may not all interpret this ruling with an even hand, and rulings like this one cannot provide comprehensive protections against sexual orientation discrimination in contexts such as public accommodations and federal funding, where there are no bans on sex discrimination to piggy back on.
“Employers as well as employees deserve the clarity that comes with express federal and state protections that everyone understands,” added Esseks. “That’s why we’ll continue to work for express and comprehensive protections. The EEOC ruling is a monumental step forward and provides important protections for millions of Americans, and that’s something to celebrate.”
“This historic ruling by the EEOC makes clear they agree workplace discrimination on the basis of sexual orientation, much like gender identity, is illegal,” said HRC President Chad Griffin in a statement. “While an important step, it also highlights the need for a comprehensive federal law permanently and clearly banning LGBT discrimination beyond employment to all areas of American life. Such a law would send a clear and permanent signal that discrimination against LGBT people will not be tolerated under any circumstances in this country, and we remain fully committed to making that happen.”