The news broke today that the EEOC has ruled that job discrimination based on sexual orientation is already illegal because it is a form of sex discrimination, which is prohibited by Title VII of the 1964 Civil Rights Act. The Commission had already decided that gender identity discrimination is sex discrimination and, therefore, illegal a few years ago.
The rulings are both historic and, I think, the real beginning of the end of job discrimination based on gender identity and sexual orientation. But I have some questions and maybe you do, too.
1. Is this the final word on the subject? Probably not. The link above is to a Washington Post piece by Dale Carpenter, a professor at the University of Minnesota Law School. In it, he notes:
"The interesting question now is how many circuit courts will go along with the EEOC’s new interpretation of Title VII. The EEOC’s views on the scope of Title VII are considered persuasive, but not binding, authority on the courts. The next president could appoint commission members who feel differently about the meaning of Title VII, and they could reverse this divided opinion. Either way, a circuit split on the issue could be resolved by the Supreme Court in the next few years."
So it will take court challenges to make the ruling stick in the various federal districts and circuits around the country. A conflict among the circuits could get the issue before the U.S. Supreme Court where we will likely get the final word.
2. Should we stop trying to change federal, state and local law? No, if we can find ways to advance explicit protections from job discrimination based on sexual orientation and gender identity, we should pursue them. In fact, the ruling may give new life to such efforts. It is still a good idea to pursue the Chattanooga non-discrimination ordinance, for example. It's good for each employer to have clear protections so that LGBT employees don't have sue in order to get them.
3. Should I talk to HR about changing the employee handbook? Maybe. If you have a relationship of open communication with your human resources representative, it might be worth having the conversation. Many HR professionals will read about the EEOC ruling in trade publications over the coming weeks and may initiate changes internally.
4. Does the ruling apply to all employers? It does appear that it will apply to most commercial (for profit) employers and to state and local governments. Smaller employers may not be affected and many religiously affiliated employers will not be affected or not affected in exactly the same way that public and commercial employers will. There is ongoing debate in the legal community about how Title VII applies to religious employers such as religiously affiliated schools. When in doubt, consult an attorney.
5. What can I do if I believe I have been discriminated against on the job on the basis of sexual orientation or gender identity? You can consult an attorney with the real possibility that your case will move forward. It may not be quick or easy, but these two EEOC rulings should now give you a much firmer footing for proceeding with your complaint. You can also contact the closest EEOC field office at this link.