The post-Obergefell world is here, and it starts with a major ruling from the Equal Employment Opportunity Commission.
On July 15, the agency responsible for enforcing anti-discrimination laws in the workplace issued a new interpretation of Title VII of the Civil Rights Act of 1964.
Specifically, the EEOC held that discrimination against gay, lesbian or bisexual employees is effectively sex discrimination, which is explicitly banned by the CRA. (Transgender employees are already covered by a 2012 EEOC ruling that incorporated gender identity-based discrimination.)
“Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms,” the EEOC explains. “ ‘Sexual orientation’ as a concept cannot be defined or understood without reference to sex. … 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.”
With the Employment Non-Discrimination Act stalled indefinitely in Congress, the decision stands as the strongest federal protection for LGB workers on the books today.
“If the EEOC’s ruling sticks, it will have accomplished what more than 40 years of legislative advocacy in Congress could not: full protection of gay men and lesbians from job discrimination throughout the United States,” wrote Dale Carpenter at the Volokh Conspiracy.
Therein lies the rub for gay advocates: while the ruling is a milestone, it is not binding on the federal courts, which retain ultimate authority on interpreting the CRA. Indeed, if the various courts of appeal ultimately split in their review of the EEOC’s decision, the U.S. Supreme Court could take up the issue.
Not everyone is pleased with the decision. The process, some say, is suspect.
“After a period of foreshadowing and rumor, the Equal Employment Opportunity Commission has now gone ahead and ruled that employment discrimination on the basis of sexual orientation is forbidden under existing federal civil rights law,” wrote Walter Olson at Cato @ Liberty. “Congress may have declined to pass the long-pending ENDA, but no matter; the commission can reach the same result on its own just by reinterpreting current law.”
Even supporters of the ruling agree that it isn’t a final solution.
“While an important step, [the EEOC’s decision] highlights the need for a comprehensive federal law permanently and clearly banning LGBT discrimination beyond employment to all areas of American life,” said Chad Griffin of the Human Rights Campaign. “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.”
Watch this space—and read the EEOC’s ruling for yourself:
Nicandro Iannacci is a web strategist at the National Constitution Center.
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