A month ago, many people would have predicted that marriage equality was coming soon. Not nearly as many would have guessed the imminent arrival of protections from employment discrimination based on sexual orientation.
In a 3-2 decision, the Equal Employment Opportunity Commission (EEOC) ruled yesterday that the ban on sex discrimination in Title VII of the Civil Rights Act of 1964 applies to employment discrimination based on sexual orientation.
Chris Geidner at BuzzFeed reports that the decision applies to federal employees’ claims directly, as well as to the entire EEOC “and its offices across the nation that take and investigate claims of discrimination in private employment.” Only the U.S. Supreme Court can be definitive about this, he adds, but notes, “EEOC decisions are given significant deference by federal courts.” This statement from the EEOC may help clarify the current maze of state, city, and other rules (or lack thereof).
The EEOC stated back in 2012 that employment discrimination based on gender identity violates Title VII as well.
Geidner notes that LGBTQ advocacy groups are suggesting different next steps, with Freedom to Work urging those who have faced employment discrimination to go to court to solidify the ruling, and HRC pushing for legislative action. My opinion is that, as with marriage equality, we should do both. Dale Carpenter at the Washington Post observes that the EEOC decision runs counter to some earlier federal circuit court decisions, with the EEOC reasoning that those decisions are “dated” or have been “undermined by subsequent precedents.” It seems that we’ll need further clarity in the courts, but that this could be helped along by legislative action as well.
Carpenter also speculates that the ruling could have an even bigger impact. Federal law prohibits sex-based discrimination in housing and education as well as employment, he writes. “While the EEOC isn’t charged with interpreting and enforcing those other federal laws, the commission’s reasoning could easily be applied beyond employment.”
To follow up on that, I’ll note that the Department of Housing and Urban Development Monday issued new guidance to clarify the Equal Access Rule, which ensures that housing across HUD programs, including housing for the elderly, is open to all eligible individuals regardless of actual or perceived sexual orientation, gender identity, or marital status.
The Department of Education has similarly issued guidance reminding schools that they must respond to reports of harassment based on gender identity or sexual orientation, and that Title IX of the Education Amendments of 1972 extends to discrimination based on gender identity. Guidance is not as firm as legislation, however. (It can change with administration.) That’s why it’s extremely disappointing that the U.S. Senate voted Tuesday against the Student Nondiscrimination Act that would have cemented protections for both gender identity and sexual orientation.
As with marriage equality, the repercussions of the EEOC ruling will likely be worked out over some time. Still, it’s a major step forward and a great companion to marriage equality. No sense getting married if it means you could lose your job. The EEOC decision may have an even wider effect, of course, as it applies to single people as well as those who are wed. Progress, my friends. It’s a beautiful thing.
