Category Archives: LGBT

Supreme Court Rules Discrimination Against LGBTQ Employees Is Discrimination On The Basis Of Sex

LGBT, U.S. Equal Opportunity Employment Commission June 16, 2020 Leave a comment

In a landmark decision in Bostock v. Clayton County, the Supreme Court of the United States ruled discrimination against LGBTQ employees violates Title VII of the Civil Rights Act of 1964. The 6-3 ruling is significant in that it did not rely on technical grounds, but rather on the legal analysis that disparate treatment of employees based on sexual orientation or gender identity is, by definition, discrimination based on sex. This decision upended what had been settled law until, at least, 2010, which generally held that Title VII’s protections do not extend to discrimination based on sexual orientation or gender identity.

Starting in 2011, the U.S. Equal Employment Opportunity Commission (EEOC), which is responsible for enforcing Title VII, interpreted Title VII to prohibit discrimination against LGBTQ employees, however, many courts did not agree. Eventually, the U.S. Department of Justice under the current administration took the opposite position of the EEOC, creating conflicting interpretations within the executive branch. Indeed, as the Court noted in Bostock, U.S. Congress has repeatedly tried to amend Title VII to expressly prohibit discrimination based on sexual orientation and gender identity to resolve the conflict between these varying interpretations. There is no doubt that this decision is historic and will have the most immediate impact on employers in states where LGBTQ employees are not already protected by state laws or where state laws only provided weak protections. Title VII applies to both the private and public employers with 15 or more employees and to the federal government, employment agencies, and labor organizations.

Although the Supreme Court limited its decision to Title VII, since the decision is rooted in an analysis of the meaning of protections from discrimination “based on sex,” we can expect it will form the basis for future courts to apply greater protections under other federal and state laws outside of Title VII that prohibit sex-based discrimination but were not previously interpreted to protect against discrimination based on sexual orientation or gender identity. The message to businesses is clear: Title VII does not condone discrimination based on sexual orientation or gender identity and that is also likely true of an array of other anti-discrimination laws.

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EEOC Finds Existing Workplace Protections Extend to Sexual Orientation

EEOC, Employment Non-Discrimination Act, LGBT August 11, 2015 1 Comment

The U.S. Equal Employment Opportunity Commission (EEOC) has ruled that discrimination against an employee  based on his or her sexual orientation can constitute sex discrimination under existing civil rights laws, adding to a wave of legal developments favoring protections for the LGBT community. The EEOC’s evolution of its interpretation of existing laws is especially noteworthy as it comes as Congress considers Employment Non-Discrimination Act (ENDA) and the Equality Act of 2015, both of which extend workplace protections to workers based on sexual orientation and gender identity. 

The EEOC ruling, issued on July 15, 2015 in Complainant v. Foxx, broke new ground when it reversed an EEOC Agency’s dismissal of a sexual orientation complaint and  found all types of discrimination based on sexual orientation are forms of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964.  For decades, the EEOC and the courts found no Title VII protections based on sexual orientation alone.  In recent years, however, the EEOC and some courts have extended Title VII protections to sexual orientation and gender identity discrimination when the discrimination can be characterized as arising out of sex-based stereotypes.  The Foxx decision takes this one step further. 

In Foxx, a federal air traffic controller based in Miami contended he was denied a promotion because he was gay.   In evaluating the scope of Title VII protections, the  EEOC noted Title VII does not exclude “sexual orientation” discrimination from its definition of discrimination based on “sex,” and the EEOC found that there can be no basis to draw  a distinction between the two.   Going forward, the EEOC directed, “Agencies should treat claims of sexual orientation discrimination as complaints of sex discrimination under Title VII and process such complaints through the ordinary . . . process.”   

The EEOC’s ruling binds the EEOC’s agencies but does not bind the courts,.  Nonetheless, state and federal courts routinely look to EEOC rulings for guidance in interpreting the Civil Rights Act and other federal anti-discrimination laws enforced by the EEOC.  In many states, including New Jersey, state laws already protects employees from discrimination based on sexual orientation and gender identity, so expansions of Title VII would have less impact on employers in those states. 

While the future is never certain, employers should expect state law and federal laws to increasingly protect employees from discrimination based on sexual orientation and gender identity, especially in light of the U.S. Supreme Court’s 2015 ruling recognizing same-sex marriage as a constitutionally-protected right.  Employers therefore should re-evaluate their anti-discrimination policies, identify any gaps relating to sexual orientation and gender identity, and consider expanding their policies and training, as needed, to protect employees from such discrimination. 

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