US Agency Rules for Gays in Workplace Discrimination

July 20, 2015 – The United States Equal Employment Opportunity Commission has ruled that workplace discrimination on the basis of sexual orientation is illegal under federal law, setting the stage for litigation aimed at striking down such practices. The ruling, issued this past week, hinged on the Civil Rights Act of 1964, which outlawed discrimination on the basis of sex in employment settings. In a 3-to-2 vote along party lines, the commission concluded that while the act did not explicitly prohibit discrimination against gays and lesbians, “an allegation of discrimination on the basis of sexual orientation is necessarily an allegation of sex discrimination.”

The ruling, dated last Wednesday but not widely publicized, quickly drew attention among advocacy groups and legal experts. “Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes or norms,” the document stated. “‘Sexual orientation’ as a concept cannot be defined or understood without reference to sex.”

The ruling applies to discrimination that may arise in hiring, firing and promotion decisions, and employees’ working conditions, such as claims of workplace harassment. It governs complaints that are filed with any office of the commission.

The ruling does not bind federal courts formally, but the courts frequently defer to federal agencies when they interpret laws that come under their jurisdiction. “In an area of law where we’re seeing rapid change, courts may well be interested in what the lead anti-discrimination agency has to say,” said Helen Norton, a professor at the University of Colorado Law School, according to an article in The New York Times.

“Courts wrestling with this question don’t have to feel that they’re first. There’s a government agency with expertise in anti-discrimination law that has taken this position.”

Several legal experts, according to The Times, said the power of the ruling was that it simplified the legal standard for those alleging discrimination. Under federal courts’ application of the existing Supreme Court precedent gay, lesbian and bisexual plaintiffs essentially had to graft arguments involving gender nonconformity onto their claims, however ill fitting. For example, a gay man might argue that he was discriminated against for not appearing sufficiently masculine, but would have little success arguing that he was discriminated against simply for being in a same-sex relationship.

Under the commission’s ruling, plaintiffs could argue that they were discriminated against based on their sexual orientation.

Some 22 states currently ban workplace discrimination on the basis of sexual orientation. The ruling this week came after a similar ruling in the 2012 case of Macy v. Holder, in which the E.E.O.C. found that discriminating against employees on the basis of their gender identity was inherently sex discrimination and therefore outlawed under the Civil Rights Act of 1964. Since then, a handful of transgender plaintiffs have won claims in federal courts after invoking the ruling.

While the ruling carries formal weight only in the area of employment, it could also pave the way for courts to rule in favor of gay, lesbian and bisexual plaintiffs in issues of housing and lending, where more recent civil rights laws also prohibit sex discrimination.

Contributed by Dale M. Zupsansky, Managing Editor, Hunt Scanlon Media

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