In the Absence of Federal Legislation for Sexual Orientation Discrimination, EEOC Steps Up

Many months ago, we heard something that surprised us – that the EEOC was interested in investigating charges of sexual orientation discrimination in the workplace.  We weren’t disappointed by this news (in fact, quite the opposite), but we were somewhat confused because the agency is charged with enforcing federal employment discrimination legislation and there simply is no federal legislation that explicitly prohibits private employers from discriminating against employees based on their sexual orientation.

Let me give you a little background here before I go further – in every year since 1994, the federal legislature has proposed some variation of a bill called the Employment Non-Discrimination Act (ENDA for short) which would prohibit workplace sexual orientation discrimination.  And in every year since 1994, that bill has failed to pass because, until very recently, the LGBTQ community seemed to have very little political capital.  And, unfortunately, for more than a decade now, that important workplace protection has been missing.

Many states have stepped up to fill the void, passing their own legislation to protect LGBTQ employees from discrimination.  But there remain quite a few states which lack those laws and, as a result, many citizens of this country remain unprotected from clearly improper and unfair (but not technically unlawful) mistreatment in the workplace.

Now, in the interim, private litigants have found ways to use Title VII of the Civil Rights Act of 1964, which is the federal law prohibiting sex discrimination in the workplace, to hold employers accountable for some blatant forms of sexual orientation discrimination.  Starting with Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), courts began to recognize that discrimination against workers based on their failure to adhere to typical gender norms or stereotypes (i.e., a woman who is not stereotypically feminine enough or a man who is perceived as effeminate), amounts to discrimination because of sex and is unlawful under Title VII.  While this legal reasoning applies to LGBTQ and straight employees alike, many LGTBQ employees have been able to use it to pursue claims which were rooted in homophobic bias.

However, a gap still remains in protections for LGBTQ employees because not every LGBTQ person fails to adhere to gender norms and those individuals may be subject to discrimination based solely on their sexual orientation and not on whether they are feminine or masculine enough.  And, so far, federal courts have been unwilling to interpret Title VII to prohibit all forms of sexual orientation discrimination, regardless of gender stereotyping.

This brings us up to date – with one important exception.  Just last month, the EEOC issued a new ruling which interprets Title VII more expansively than ever before.  Specifically, on July 15, 2015, in _____ v. Foxx, EEOC Appeal No. 2012-24738–FAA-03 (July 15, 2015), the agency held that Title VII’s prohibition on discrimination because of sex includes a prohibition on discrimination because of sexual orientation.

Now, this decision is not binding on federal courts; thus, it’s possible that it will have little impact on how Title VII is interpreted for the majority of individuals bringing employment discrimination claims.  But the EEOC is a respected voice in interpretation and enforcement of federal employment discrimination laws and courts have repeatedly relied on their guidance in the past.  Further, given the recent trend in community support, political dialogue and judicial decisions recognizing the rights of LGBTQ citizens, this decision could signal an important victory.  We are thrilled to see such a straightforward step in the right direction and optimistic that this will be the impetus for much more significant change – including the ultimate (and long awaited) passage of ENDA so that neither the EEOC nor private litigants have to find ways to fit these important protections into imperfect existing laws.  For now, though, our hats are off to the EEOC.