In a decision that could provide important remedies to thousands of LGBT federal workers who might face sexual orientation discrimination, the U.S. Equal Employment Opportunity Commission ruled Thursday (July 15) that existing federal law prohibits employment discrimination against federal workers based on sexual orientation.
Lambda Legal hailed the ruling as a “landmark” decision, saying it “authoritatively recognizes that federal workers mistreated because of their sexual orientation have a claim under Title VII.” Lambda added that the decision could have a positive impact for LGBT employees beyond the federal workplace.
“This ruling is likely to have enormous positive effects because EEOC interpretations of Title VII are highly persuasive to the courts,” said Lambda Employment Fairness Strategist Greg Nevins. “Given the clarity and logic of this opinion, most courts are likely to stop simply referring to old, illogical rulings about Title VII coverage. A few may disagree, but most probably will be guided by the Commission’s straightforward approach.”
President Clinton signed an executive order in 1998 to prohibit discrimination based on sexual orientation against federal civilian employees. And last April, President Obama added a prohibition against gender identity discrimination and discrimination by federal contractors.
“The EEOC decision,” explained Nevins, “affords a concrete remedy directly to the aggrieved party, i.e., the usual remedies available under Title VII. Under the President's Executive Order, discrimination could result in significant penalties for the employer/government contractor, but wouldn't directly result in the target of discrimination being made whole.”
The decision is one that has been in the making at EEOC for some time. Last October, the EEOC filed a brief in a Seventh Circuit federal appeals court case, arguing that the EEOC and an increasing number of courts have recognized that “intentional discrimination” based on sexual orientation “can be proved to be grounded in sex-based norms, preferences, expectations, or stereotypes.”
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex and national origin. It also prohibits an employer from retaliating against an employee who files a discrimination complaint.
In the current EEOC case, Complainant v. Anthony Foxx, an air traffic control supervisor (who was not publicly identified by name) asserted that he was fired in retaliation for filing a complaint that he had been passed over for a promotion because he was gay.
The employee filed a complaint three years ago after being fired from his position as a Supervisory Air Traffic Control Specialist at Miami International’s control tower. He said he was fired in retaliation for filing a complaint alleging he was passed over for a promotion because he was gay. But the Equal Employment Opportunity office of the Federal Aviation Administration dismissed his complaint.
The July 15 decision by the EEOC did not determine whether the employee’s FAA supervisors had, in fact, discriminated against the employee based on his sexual orientation; rather it sent that question back to the FAA, directing it to process it as an EEO complaint.
In doing so, the EEOC decision states that “Title VII’s prohibition of sex discrimination means that employers may not ‘rely upon sex-based considerations’ or take gender into account when making employment decisions….This applies equally in claims brought by lesbian, gay, and bisexual individuals 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,” states the decision.
“Title VII similarly prohibits employers from treating an employee or applicant differently than other employees or applicants based on the fact that such individuals are in a same-sex marriage or because the employee has a personal association with someone of a particular sex,” wrote the commission.
But as important as the ruling in Complainant v. Anthony Foxx is, it does not compensate for the lack of explicit language in federal law prohibiting sexual orientation discrimination.
Long-time gay legal activist Evan Wolfson of the national Freedom to Marry project noted that the current Employment Non-Discrimination Act (ENDA) in Congress seeks to prohibit discrimination not just in employment but also in housing, public accommodations, education and federal funding. The EEOC decision “avoids uncertainty that makes it more difficult for both individuals and employers.”
“Even if this [EEOC] decision was adopted by every court and carried out to a natural conclusion, it still wouldn’t accomplish what ENDA is trying to do there.”
And Nevins said the EEOC would “absolutely” help persuade Congress to move forward with ENDA and influence courts.
The EEOC decision itself notes, “Some courts have also relied on the fact that Congress has debated but not yet passed legislation explicitly providing protections for sexual orientation.”
“But the Supreme Court has ruled that ‘[c]ongressional inaction lacks persuasive significance because several equally tenable inferences may be drawn from such inaction, including the inference that the existing legislation already incorporated the offered change.’”
"This historic ruling by the EEOC makes clear they agree workplace discrimination on the basis of sexual orientation, much like gender identity, is illegal,” said Human Rights Campaign President Chad Griffin in a statement released Thursday. “While an important step, it also highlights the need for a comprehensive federal law permanently and clearly banning LGBT discrimination beyond employment to all areas of American life. Such a law would send a clear and permanent signal that discrimination against LGBT people will not be tolerated under any circumstances in this country, and we remain fully committed to making that happen."
A 2014 report by the Office of Personnel Management indicated there are 4.2 million U.S. federal employees worldwide. A 2012 survey indicated that about two percent (84,000) of the federal workforce identifies as gay, lesbian, bisexual, or transgender.
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