'Sexual orientation discrimination is sex discrimination,' EEOC rules

The Equal Employment Opportunity Commission evoked the Civil Rights Act to rule it is unlawful for an employer to discriminate against a worker for sexual orientation.

Matt Rourke/AP
Flags are waved during the National LGBT 50th Anniversary Ceremony, on July 4, in front of Independence Hall in Philadelphia. The event marks the 50th anniversary of a protest outside Independence Hall that would be a milestone in the fight for gay rights.

Employment discrimination based on sexual orientation amounts to sex discrimination, the Equal Employment Opportunity Commission (EEOC) decided Thursday in a ruling that grants new workplace protections to lesbian, gay, bisexual, and transgender (LGBT) employees.

Under Title VII of the Civil Rights Act of 1964, employment discrimination “based on race, color, religion, sex, and national origin” is prohibited. The EEOC concluded in a 3-2 decision that sexual orientation is inherently tied to sex, so employers who make decisions based on sexual orientation violate the law.

“Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex,” the EEOC said in the ruling.

A hypothetical example used in the decision imagines a lesbian woman who displays a photo of her wife on her desk at work and is suspended. A male employee also has a photo of his wife on his desk, but he is not punished for it.

“The lesbian employee in that example can allege that her employer took an adverse action against her that the employer would not have taken had she been male,” the ruling said. “That is a legitimate claim under Title VII that sex was unlawfully taken into account in the adverse employment action.”

Supreme Court Chief Justice John Roberts explored a similar hypothetical in April during the discussions over same sex marriage, drawing the connection between sex and sexual orientation even though he ultimately voted against same sex marriage in June.

“If Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t,” Chief Justice Roberts said at the time, “And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”

The EEOC’s opinion does not reflect that of several circuit courts, however, which have concluded in cases involving sexual orientation-based employment discrimination that Congress did not mean to ban LGBT discrimination when it passed Title VII, as The Washington Post reports.

The commissions ruling is not binding on these courts, so the impact the decision will have is unclear. Though not directly applicable to fields like housing and education, the spirit of the decision may also be influential in addressing LGBT discrimination outside of just employment.

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