EEOC Rules Sexual Orientation Employment Discrimination Is Barred By Federal Law

Another bad day for heterosexual supremacists! We will have to start calling the summer of 2015 "rainbow summer"! Buzzfeed's Chris Geidner is reporting that the Equal Employment Opportunity Commission has (finally) ruled that sexual orientation is covered under Title VII of the Civil Rights Act of 1964. This means that nationwide, under federal law, you can not be discriminated against based on your sexual orientation. The EEOC had previously ruled in 2012 that gender identity or expression was covered under the term "sex," which meant that discrimination against transgender individual was illegal under federal law.


Geidner explains:

The commission found that sexual orientation discrimination is sex discrimination for several reasons. Among the reasons, the commission stated, is because sexual orientation discrimination “necessarily entails treating an employee less favorably because of the employee’s sex” and “because it is associational discrimination on the basis of sex.”   

After a review of the case law regarding similar challenges to employment practices alleging a violation of Title VII where the initial understanding of the law would not have included that coverage, the commission stated, “The courts have gone where the principles of Title VII have directed.”

“Our task is the same,” the decision found. “We therefore conclude that Complainant’s allegations of discrimination on the basis of sexual orientation state a claim of discrimination on the basis of sex. We further conclude that allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex.”

This is a huge deal! This means that in the  28 states which do not have state laws containing protections against employment discrimination based on sexual orientation, LGB people will have access to the EEOc process based upon federal law. This issue will become more salient as now that marriage equality is the law of the land nationwide, people's marital status may "out" them in the workplace, thus causing them to be subject to anti-LGB animus in many jurisdictions. This EEOC decision will provide many people with some measure of protection and recourse. However, we should not forget that LGBT people will still be able to be discriminated against in housing, credit, education and public accommodations in more than half the states.

QUEER QUOTE: Justice Department Now Agrees 1964 Civil Rights Act Protects Transgender People

There has been an interesting (and important) development late in the year in LGBT equality! The question of whether discrimination on the basis of gender identity or expression is covered under prohibitions against "sex discrimination" has been hotly debated for years. The Equal Employment Opportunity Commission (EEOC) issued a ruling in Macy v. Holder in 2012 which said that they believe that discrimination against transgender individuals is illegal sex discrimination under federal law. The U.S. Department of Labor used that ruling to issue an announcement in 2014 that the agency also believes employment discrimination against transgender individuals is illegal under federal law.

Chris Geidner of Buzzfeed reports that on December 15, 2014 the Attorney General of the United States sent out a memorandum basically agreeing with the EEOC and Labor Department's interpretation of Title VII of the 1964 Civil Right Act that prohibition of sex discrimination in employment includes transgender employees.

This is a huge deal because there is no federal law enacted by Congress prohibiting discrimination against LGBT employees and only a dozen states have enacted state laws protecting civil rights based on gender identity or gender expression (in contrast to over 20 states that have law protecting civil rights based on sexual orientation). Thus the Justice Department reversing its previously held position and now endorsing the concept that "sex" includes "gender identity or expression" is very significant.

Here's a key excerpt from the Attorney General's memorandum (Treatment ofTransgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964 ) which is today's Queer Quote:

After considering the text of Title VII, the relevant Supreme Court case law interpreting the statute, and the developing jurisprudence in this area, I have determined that the best reading of Title VII' s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status. The most straightforward reading of Title VII is that discrimination "because of ... sex" includes discrimination because an employee's genderidentification is as a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex. As the Court explained in Price Waterhouse, by using "the simple words 'because of,' ... Congress meant to obligate" a Title VII plaintiff to prove only "that the employer relied upon sex-based considerations in coming to its decision." 490 U.S. at 241-242.It follows that, as a matter of plain meaning, Title VII' s prohibition against discrimination "because of ... sex" encompasses discrimination founded on sex-based considerations, including discrimination based on an employee's transitioning to, or identifying as, a different sex altogether. Although Congress may not have had such claims in mind when it enacted Title VII, the Supreme Court has made clear that Title VII must be interpreted according to its plain text, noting that "statutory prohibitions often go beyond the principal evil to cover reasonablycomparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 79 (1998). 

It basically says what I said, but in a lot more words, and using Supreme Court precedent. This is a very important result and it will be interesting to see if this signals the next evolution of civil rights jurisprudence which is that discrimination on the basis of sexual orientation (i.e. against LGB people) is also sex discrimination. I have believed that it is, and the best explanation for why this is I have ever read is in Andrew Koppelman's  now seminal 1994 law review article "Why Discrimination Against Lesbians and Gay Men is Sex Discrimination."

The interesting situation now is that currently the T in LGBT have federal employment protections while the LGB do not, while the LGB have many more states where they are protected under state law and the T are not. Surely this untenable status quo can not be maintained for long.

 Hat/tip to Chris Geidner

U.S. Labor Department Announces Enforcement of Ban On Transgender Discrimination Nationwide

Interesting news out of the Labor Department today, via Chris Geidner. Apparently, the Labor Department has finally agreed to enforce the interpretation that the Equal Employment Opportunity Commission has determined that the 1964 Civil Rights Act prohibition against discrimination on the basis of sex protects transgender individuals from discrimination under federal law.

The policy change was announced in a blog post by Secretary Tom Perez:

As we celebrate Pride Month and approach the 50th anniversary of the Civil Rights Act, the Labor Department is reaffirming its commitment to equal opportunity for all. That’s why we are updating enforcement protocols and anti-discrimination guidance to clarify that we provide the full protection of the federal non-discrimination laws that we enforce to transgender individuals. 

These changes reflect current law. In Macy v. Holder, for example, the Equal Employment Opportunity Commission concluded that discrimination because a person is transgender is sex discrimination in violation of Title VII of the Civil Rights Act of 1964. The Office of Federal Contract Compliance Programs and Civil Rights Center, along with the Employment and Training Administration, will issue guidance to make clear that discrimination on the basis of transgender status is discrimination based on sex.  While the department has long protected employees from sex-based discrimination, its guidance to workers and employers will explicitly clarify that this includes workers who identify as transgender. The department will continue to examine its programs to identify additional opportunities to extend the law’s full protection against discrimination to transgender workers.

This is exciting news, and must be warming to openly lesbian EEOC Chair Chai Feldblum's heart.

Chai Feldblum, "Mother of ENDA," Confirmed to 2nd EEOC Term

Good news! Chai Feldblum, a commissioner on the federal Equal Employment Opportunity Commission, has been confirmed by a vote of 54-41 to a second term. Feldblum herself tweeted the news yesterday:

Feldblum is widely known as the "mother of ENDA," and also as the longtime partner (and wife?) of Nan Hunter, a well-respected Professor of Law at Georgetown who is an expert on LGBT jurisprudence.

In her first term on the EEOC, Feldblum was instrumental in the EEOC's unanimous Macy v. Holder ruling that interprets the prohibition against workplace discrimination found in Title VII of the 1964 Civil Rights Act to include transgender individuals. This means that just like employment discrimination based on race is prohibited nationwide, employment discrimination against transgender people is also illegal.

This is somewhat surprising since there is no federal law that prohibits discrimination against LGBT people in employment, which is precisely what ENDA (the Employment Non-Discrimination Act) is intended to do. ENDA passed the United States Senate for the first time earlier this year but is now pending in the U.S. House, where Republicans are not expected to bring it to a vote.

Hat/tip to Karen Ocamb

EEOC Rules Gender Identity Covered Under Title VII

Wow! In a huge win for LGBT people, the U.S. Equal Employment Opportunity Commission (EEOC) has issued an official decision that transgender individuals are protected from gender identity discrimination under federal law.

Chris Geidner of Metro Weekly has the exclusive report (and his usual excellent analysis):

An employer who discriminates against an employee or applicant on the basis of the person's gender identity is violating the prohibition on sex discrimination contained in Title VII of the Civil Rights Act of 1964, according to an opinion issued on April 20 by the Equal Employment Opportunity Commission (EEOC). The opinion, experts say, could dramatically alter the legal landscape for transgender workers across the nation. 

[...] 

The EEOC decision, issued without objection by the five-member, bipartisan commission, will apply to all EEOC enforcement and litigation activities at the commission and in its 53 field offices throughout the country. It also will be binding on all federal agencies and departments.
In the decision, the EEOC states, ''[T]he Commission hereby clarifies that claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII's sex discrimination prohibition ....'' 

[...] 

''When an employer discriminates against someone because the person is transgender, the employer has engaged in disparate treatment related to the sex of the victim,'' the decision states. ''This is true regardless of whether an employer discriminates against an employee because the individual has expressed his or her gender in a non-stereotypical fashion, because the employer is uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another, or because the employer simply does not like that the person is identifying as a transgender person.''

I strongly encourage you to read the entirety of Chris' article, which also summarizes the state of current Supreme Court precedent , along with federal law in this area and includes commentary from transgender legal experts.

This is really a momentous decision that will have a real impact on the lives of transgender people throughout the country and (again) demonstrates the importance of Presidential appointments to federal commissions. The EEOC is a 5-member body, one of whose members is the openly lesbian "mother" of the Employment Non-Discrimination Act, Chai Fledblum.

Elections have consequences!