Workplace discrimination based on sexual orientation already illegal, per EEOC ruling

Yesterday, the Equal Employment Opportunity Commission (EEOC) ruled that discriminating against employees on the basis of their sexual orientation constitutes illegal discrimination under the Civil Rights Act of 1964.

The case concerns an unnamed employee at the Miami Tower TRACON facility, an air traffic control agency under the Department of Transportation. The plaintiff in the case was able to show that they were denied a promotion on the basis of their sexual orientation, which the EEOC ruled was in violation of their civil rights.

Among other things, the plaintiff’s supervisor had made several negative comments concerning his sexual orientation, including that even mentioning his male partner constituted a “distraction in the radar room.”

Per The Washington Blade:

The EEOC reasons sexual orientation discrimination is sex discrimination because it necessarily entails treating employees less favorably because of gender and because such bias is associational discrimination based on gender.

“When an employee raises a claim of sexual orientation discrimination as sex discriinination under Title VII, the question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions,” the decision states. “It is not. Rather, the question for purposes of Title VII coverage of a sexual orientation claim is the same as any other Titie VII case involving allegation of sex discrimination — whether the agency has “relied on sex-based considerations” or “take[n] gender into account” when taking the challenged employment action.”

This reasoning builds on a 2012 ruling, Macy v Holder, that used a similar reasoning process to prohibit workplace discrimination against transgender employees. The logic is extremely straightforward: The Civil Rights Act prohibits discrimination on the basis of sex, including, as the Supreme Court has ruled, irrational sex stereotyping. The plaintiff successfully argued that his superior devalued his job performance due to an irrational stereotype concerning normative male sexual behavior — namely that he was in a relationship with another man. In other words, the plaintiff was discriminated against due to his being a man — a man who did not conform to his supervisor’s irrational anger over who he was dating. As Slate‘s Mark Joseph Stern adds:

Jobs via Shutterstock

Employment, via Shutterstock

The EEOC also presents a simpler secondary theory: Sexual orientation discrimination is “associational discrimination on the basis of sex.” When a homophobic employer mistreats a gay male employee, he does so because he dislikes the fact that his employee dates other man. In other words, the employer took that employee’s sex into account while making the decision to treat him unequally. Such discrimination is obviously sex-based—and therefore forbidden by Title VII.

If the ruling is appealed, which is likely, it could come before the Supreme Court soon, forcing their hand as to whether LGBT people are a protected class subject to heightened scrutiny, a line that the Court walked up to but did not cross in their recent ruling affirming a right to same-sex marriage.


Currently, the ruling only applies to federal employees, but that could soon change. As Stern continues:

…under the new guidelines, all sexual orientation discrimination will be considered illegal, empowering gay private employees to lodge discrimination complaints. Until the Supreme Court weighs in, lower courts may choose to accept or reject the EEOC’s reading of Title VII. But the commission’s rulings are respected by the judiciary, and could tip more courts to rule that sexual orientation discrimination is, indeed, already forbidden in the United States.

The EEOC’s ruling represents a massive step forward. Workplace equality has been seen as one of the next big fights for the LGBT movement, and if this ruling holds up in future cases it will mean that fight is already over.

Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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