Good Stuff

[Content Note: Homophobia.]

The Equal Employment Opportunity Commission has ruled that Title VII of the Civil Rights Act of 1964 bars sexual orientation-based employment discrimination, which is a huge win for lesbian, gay, and bisexual workers in the US:

"[A]llegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex," the commission concluded in a decision dated July 15.

...While the EEOC had been pushing toward today's decision with cases and even field guidance addressing coverage under Title VII of specific types of discrimination faced by gay people, the July 15 decision states that "sexual orientation is inherently a 'sex-based consideration.'"

In reviewing courts' prior interpretation of the words of Title VII, the commission acknowledged plainly that sexual orientation itself is not listed as a type of discrimination barred in the 1964 law.

"[T]he question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. It is not," the commission found. Instead, the commission stated that the question is the same as in any other Title VII sex discrimination case: "whether the agency has 'relied on sex-based considerations' or 'take[n] gender into account' when taking the challenged employment action."

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."

Tico Almeida, the head of Freedom to Work, celebrated the decision — and urged LGBT groups to go to the courts to seek codification of the ruling.

"Freedom to Work applauds this historic decision by the EEOC, and we encourage gay men, lesbians, and bisexuals who face harassment or discrimination on the job to consult an attorney and file Title VII claims with the EEOC and eventually the federal courts," he said. "Our LGBT movement should take this strongly reasoned legal victory and run with it by returning to the federal courts to win workplace protections in all fifty states.

Although EEOC decisions "are given significant deference by federal courts," ultimately "only the Supreme Court could issue a definitive ruling on the interpretation," which is why Freedom to Work, and other advocacy groups, are urging soliciting federal court rulings.

The EEOC, like every other federal agency, doesn't exist or operate in a vacuum: "All Commission seats and the post of general counsel to the commission are filled by the President of the U.S., subject to confirmation by the Senate." Unless, of course, the Senate is full of obstructionist shitlords, in which case the President can make recess appointments, which is what President Obama has done. And he chose people who were inclined to favorably interpret existing civil rights law to protect LGB employees.

This is a big win in an ongoing battle. Yay!