On July 18, 2015, the Equal Employment Opportunity Commission (EEOC) issued a decision (which can be seen here) finding that the federal law banning traditional gender discrimination also forbids discrimination based on an individual’s sexual orientation. This decision represents a change in the view of the EEOC, but is consistent with the EEOC’s growing view that sexual-orientation discrimination is a type of gender discrimination banned by federal law. The EEOC panel split on the vote 3-2, but used the reasoning that if transgender-status discrimination is prohibited under the law’s prohibition on sex discrimination, so must sexual orientation. The argument used by the EEOC is as follows: (1) “Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, and norms,” and, thus, (2) “allegations of sexual orientation discrimination involve sex-based considerations.”
Effect of the EEOC Ruling
Courts give weight to, but are not bound by, EEOC decisions. The ruling is likely to play a role in how courts view anti-discrimination laws, but it remains unclear whether the ruling will ultimately make a difference. Most federal courts have consistently ruled that the anti-discrimination laws do not extend to sexual orientation or sexual preference. The question now will be whether or not the courts take a more liberal and progressive view, and attempt to interpret the civil rights laws in light of societal changes in the last ten to twenty years. Some have argued that the US Supreme Court’s recent ruling allowing same-sex marriages is an example of a court that is interpreting old laws in light of current outlooks and events. Some have taken the position that the Constitution and other laws have to be viewed in light of current events, which might not have been anticipated and covered by laws adopted long ago. Courts could ignore the EEOC’s decision based on prior rulings about this issue. On the other hand, when the EEOC took steps in the not-too-distant past to expand coverage for transgender individuals, courts seemed willing to follow that reasoning.
What Should Employees Do?
Employees who feel they have been discriminated against on the basis of sexual orientation should consider using company policies banning gender discrimination to make complaints. This will provide protection even if it turns out that courts do not follow the EEOC’s lead. I recommend this for two reasons. First, the EEOC may prove to be right, and courts might follow along. That would provide actual legal protection for those who have used their company’s policies and procedures to complain of discrimination. Second, an employee who makes a good-faith complaint of discrimination gets legal protection against retaliation even if the complaint is wrong. Courts don’t expect employees to be lawyers. Sometimes employees make complaints of discrimination that turn out to be unfounded. The law protects these employees, even if they are ultimately proven wrong, as long as the complaint was made in good-faith. Reliance on an EEOC ruling should be enough to establish a good-faith basis for making a complaint of sexual orientation as a form of gender discrimination.
The EEOC ruling is not a court decision and does not have the effect of law. But it is likely to be considered by at least some federal courts around the country. If you believe you are the victim of sexual orientation discrimination, you should make an internal complaint of discrimination using your employer’s complaint procedures. (If you are a former employee, you should contact an employee-rights lawyer. You should not use the company’s internal complaint procedures if you are no longer employed until you consult with an attorney. So if you have been fired and you think the termination was based at least in part on your sexual orientation, speak to an employee-rights lawyer first for guidance on how to proceed.) If your employer will not accept your complaint because it is based on sexual orientation discrimination, document your effort to make the complaint in an email to the person who declined to accept it, usually your human resource department. It is important to document the attempt to make the complaint in the event the human resource office later claims you never did so. Courts will usually credit you with making a complaint if you attempted to do so but were thwarted.