The Equal Employment Opportunity Commission (EEOC), the federal agency that enforces Title VII of the Civil Rights Act of 1964, issued a decision on July 15 holding for the first time that Title VII’s ban on employment discrimination because of sex includes discrimination against somebody because they are gay, lesbian or bisexual. This marks a complete turnaround by the EEOC from the position taken by the agency throughout all of its 50 year history. The Commission, acting in its appellate capacity, overruled a 2013 agency decision that had rejected a discrimination claim by a man who had been denied a permanent Front Line Manager position by the Federal Aviation Administration. As is customary with such administrative rulings by the EEOC, the decision does not give the name of the man, referring throughout to the “Complainant.” Baldwin v. Foxx (Anthony Foxx, Secretary, Department of Transportation), 2015 WL 4397641 (EEOC, July 15, 2015).
The EEOC went into business in July 1965 when Title VII took effect. That statute was the result of prolonged struggle in Congress, including a lengthy filibuster in the Senate led by southern conservative Democrats opposed to racial integration of the workplace. Almost all of the attention around Title VII focused on the proposal for a federal ban on race discrimination in employment. The bill originally introduced in the House of Representatives was limited to race or color, religion and national origin as prohibited grounds of discrimination. The relevant House committees did study sex discrimination issues, but decided that the Equal Pay Act passed in 1963, which prohibited compensating men and women at different rates for the same work, was sufficient, and proponents of the bill feared that adding a general prohibition on sex discrimination would endanger the bill’s passage. Nonetheless, on the floor of the House, Rep. Howard Smith of Virginia, a long-time proponent of equal legal rights for women, introduced an amendment to add sex, which was passed by an unlikely alliance of pro-feminist liberals and southern conservatives. Some of the southerners probably supported the amendment hoping that this would make the final bill more difficult to pass. Because “sex” was added as a floor amendment, the committee reports on the bill do not discuss it, and Smith’s amendment did not add any definition of sex to the definitional section of the bill, merely adding the word “sex” to the list of prohibited grounds of discrimination wherever that list appeared in the bill.
After the bill passed the House, it went to the Senate under a deal worked out by the leadership to by-pass the committee process, in order to prevent it from being bottled up in committee by the conservative southern Democratic chair of the Judiciary Committee, Senator Eastland, who was a sworn opponent of the bill. Instead the measure went directly to the Senate floor under a procedure that allowed little opportunity for amendments. There was some brief discussion about the inclusion of sex but nothing really illuminating, apart from a floor amendment attempting to reconcile the bill with the Equal Pay Act, the meaning of which wasn’t settled until a Supreme Court ruling several years later.
Consequently, the “legislative history” provides no help in figuring out what kind of discrimination Congress intended to ban when it voted to add “sex” to the list of prohibited grounds of employment discrimination. Without such guidance, the EEOC and the courts were left to their own devices in trying to figure out what this meant, and the conclusion they reached early in the history of Title VII was that it was intended to prohibit discrimination against women because they were women or against men because they were men. As such, both the EEOC and many courts ruled beginning shortly after the Act went into effect that it did not apply to discrimination because of a person’s sexual orientation or gender identity, both concepts that were largely missing from American jurisprudence during the 1960s. One commonsense reason usually raised by courts in rejecting such discrimination claims was that if Congress had intended to ban these forms of discrimination, there surely would have been some mention during the debates over the bill. They have also pointed to the fact that bills to add sexual orientation and gender identity to Title VII or to enact a free-standing law addressing such discrimination have been frequently introduced in Congress since the early 1970s, but no such measure has ever been enacted. Some courts have construed this history to reflect Congress’s view that Title VII does not already ban such discrimination.
A Supreme Court decision from 1989, Price Waterhouse v. Hopkins, initiated a changing landscape for sexuality issues under Title VII. Ann Hopkins, rejected for a partnership at Price Waterhouse, won a ruling from the Supreme Court that sex stereotypes held by some of the partners who voted against her application violated her rights under Title VII. Writing for a plurality of the Court, Justice William J. Brennan said that Title VII applied to discrimination because of gender, not just biological sex. Later courts seized upon this to justify taking a broader view of sex discrimination under Title VII. By early in this century, there was a growing body of federal court rulings suggesting that LGBT people might be protected to some extent under Title VII, depending on the nature of their case. If the discrimination they suffered could be described in terms of sex stereotypes, or if they could show that they had been the victim of sexual harassment that turned in some way on their gender, they might be able to maintain a legal claim of discrimination.
Within the past few years, the EEOC has taken a leading role in making these developments more concrete, first by its treatment of discrimination claims within the internal investigative process, and then through its decision-making on discrimination claims brought against federal agencies, where the Commission plays an important appellate role reviewing rulings by federal agencies on internal employment grievances. In 2012, the EEOC ruled in a case against the Justice Department that a transgender woman who was denied a position because of her gender identity had a valid claim under Title VII. Macy v. Dep’t of Justice, 2012 Westlaw 1435995 (April 20, 2012). This ruling echoed many then-recent federal court decisions, including some by courts of appeals, finding that discrimination because of gender identity almost always involves sex stereotyping by the discriminating employer. Late last year, the agency and then the Justice Department concluded that all gender identity discrimination claims could be investigated and prosecuted under Title VII. Pushing that position forward, the Justice Department has filed suit on behalf of the EEOC or joined ongoing private cases in federal court seeking to move the courts beyond the stereotyping theory to a straightforward acceptance that gender identity discrimination is sex discrimination.
The new July 15 ruling by the EEOC seeks to achieve the same thing for lesbians, gay men and bisexuals confronting employment discrimination. While acknowledging the significance of the Supreme Court’s Price Waterhouse decision and sex stereotyping theory in widening the agency’s appreciation of the scope of sex discrimination, this ruling takes things a step further. “In the case before us,” wrote the Commission, “we conclude that Complainant’s claim of sexual orientation discrimination alleges that the Agency relied on sex-based considerations and took his sex into account in its employment decision regarding the permanent FLM position. The Complainant, therefore, has stated a claim of sex discrimination. Indeed, we conclude that sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII. A complainant alleging that an agency took his or her sexual orientation into account in an employment action necessarily alleges that the agency took his or her sex into account.”
The Commission amplified this conclusion with an extended discussion, grounding its conclusion in rulings by several federal courts and pointing especially to the well-established principle that discriminating against somebody because of the race of their sexual partner has long been deemed by the Commission and the courts to be race discrimination. Logically, then, discriminating against somebody because of the sex of their sexual partners would be sex discrimination. The Commission also referenced the recent marriage equality litigation, noting the Supreme Court’s statement in Obergefell v. Hodges that laws prohibiting same-sex marriage “abridge central precepts of equality.” Of course, the Commission also explained that recent court rulings have made clear that stereotyped thinking about proper gender roles, as well as behavior, underlies much sexual orientation discrimination, thus providing a firm theoretical justification in the Supreme Court’s Price Waterhouse case.
What is the significance of this EEOC ruling? It is likely to result in the agency initiating federal court litigation, enlisting the Justice Department, to push this interpretation of Title VII into the courts. Although federal courts are not bound by an administrative agency’s interpretations of their governing statutes, the Supreme Court has frequently deferred to agency interpretations when they are seen as consistent with the statutory language and overall congressional purpose, and constitute a reasonable interpretation of the statute. Here is where the EEOC’s past rulings may result in less deference than courts otherwise might give. When an agency “changes its mind” about an issue, courts may be skeptical about whether the new ruling is more political than legalistic. So it may be premature to assume that this ruling by the EEOC means that we have no need to enact explicit federal protection through a vehicle such as the Employment Non-Discrimination Act (ENDA), which has been pending in one form or another in Congress since 1993.
Ironically, this EEOC action comes at a time when LGBT political leaders have largely abandoned ENDA, finding it too narrowly focused on employment. Objections have also been raised to the extremely broad religious exemption contained in ENDA. One of the major lobbying victories last summer was persuading the Obama Administration not to include the broad ENDA-style religious exemption in President Obama’s executive order banning sexual orientation and gender identity discrimination by federal contractors. Lobbyists are now working with legislators on a broader, comprehensive LGBT civil rights bill, expected to be introduced this summer, that would go beyond employment to cover other areas traditionally covered by federal law, including housing, public services and public accommodations. In the meantime, however, it will certainly be useful for the federal government’s primary civil rights enforcement agency, the EEOC, to be on record that sexual orientation discrimination is sex discrimination. EEOC’s view may be influential with the agencies that enforce the Fair Housing Act and the other titles of the Civil Rights Act, and its analysis may prove persuasive to the courts, regardless of the level of deference it receives.
The vote on this decision is not indicated in the opinion (which was drafted by the Commission’s staff), but was reported in the press as a party-line vote of 3-2. Under the statute, the five-member Commission may not have more than three commissioners who are members of the same political party. The two Republicans on the Commission voted against this decision, but did not issue a written dissent. A prime mover behind the EEOC’s expanded view of sex discrimination to encompass gender identity and sexual orientation claims has been Commissioner Chai Feldblum, the first openly gay member of the Commission, who was appointed by President Obama and confirmed by the Senate for a second term last year.