EEOC: Sexual Orientation Bias Is Sex Discrimination, Too

Mirroring its landmark 2012 ruling on gender identity, the US Equal Employment Opportunity Commission this week ruled that discrimination based on sexual orientation also constitutes sex discrimination under Title VII of the Civil Rights Act of 1964. In the case of a Department of Transportation worker who alleged he was not selected for a promotion because he is gay, the Commission ruled that no matter how you look at it, anti-gay discrimination is inherently gender-based.

The EEOC explained that bias based on sexual orientation amounts to bias based on a person’s gender and the gender of their partners or potential partners, or based on assumptions about who men or women should date, marry, or be attracted to. While some courts have ruled otherwise in the past, those decisions are contrary to Supreme Court precedents saying courts must interpret the words of laws, not speculate on the specific intentions of legislators.

Like the Macy v. Holder ruling on gender identity, the EEOC ruling is not binding on courts—but it is binding on the EEOC itself, which investigates many workplace cases, and may prove persuasive to courts. The Macy ruling preceded a memo from Attorney General Eric Holder taking the same position, and led to lawsuits filed by the Justice Department and EEOC on behalf of trans people.

The argument that gender identity, but not sexual orientation, is already covered by Title VII and other sex discrimination laws has sometimes been asserted as a reason to cut gender identity out of LGBT nondiscrimination bills at the state or local level. In fact, all forms of anti-LGBT nondiscrimination are inherently gender-based—and yet we still urgently need legislation to make clear beyond doubt, once and for all, that LGBT people are protected. The EEOC’s underscores that the entire LGBT community is in the same boat in that regard.

We urge anyone who has faced anti-LGBT or other gender-based discrimination in the workplace to consult NCTE’s Know Your Rights resources and to seek legal help.