The Equal Employment Opportunity Commission issued a ruling last week in which it stated that employment discrimination based upon sexual orientation amounts to sex discrimination, at least for claims against the federal government.
The 3-2 ruling by the Commission directly applies only to federal workers since the decision arose from a federal-sector case where the EEOC has adjudicatory authority.
The Commission’s ruling is not binding on the federal courts which hear Title VII claims against private employers, so the impact of the decision is unclear at this time. However, a spokesperson for the EEOC stated that its reasoning and application extend to the entire EEOC, including how the agency will look at investigations, conciliations and litigation.
Under Title VII of the Civil Rights Act of 1964, employment discrimination “based upon race, color, religions, sex and national origin is prohibited.” The EEOC concluded 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.
The EEOC’s opinion does not reflect that of several federal 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. Federal courts give deference to, though are not required to follow, EEOC agency-based determinations.
The current EEOC ruling is subject to further appeal.