Sexual Orientation May Already Be Covered by Discrimination Statutes… Maybe

The Equal Employment Opportunity Commission (EEOC) recently ruled that discrimination based on sexual orientation is illegal based on existing anti-discrimination statutes, and no new legislation is needed to ban sexual orientation discrimination.  This could add one more protection for lesbian, gay, and bisexual people (due to a quirk in the law, transgender people were already mostly protected from discrimination) especially with the major victory in the recent Supreme Court same-sex marriage decision Obergefell v. Hodges.  Unfortunately, there is reason to believe that these protections may not actually last for long.  Hit the jump for all the details…

In order to understand how fragile the EEOC’s decision is, one first has to understand how agencies like the EEOC fit into the legal system (if this is refresher for you, please feel free to skip to the next paragraph).  Everyone knows that it is the legislature’s job to create laws but what isn’t appreciated is that the legislature often just crafts the bare-bones outlines of a law.  To take a simplified example, congress may pass a law saying that it is illegal to “discriminate against protected classes” but then leave the specific tasks of defining “discriminate” and creating “protected classes” to an agency of the executive branch.  The definitions and decisions made by the agency can then be reviewed by the judicial branch to decide if they are consistent with the original law (often with a great deal of deference to the agency’s decision).  Therefore, agencies like the EEOC have lots of power but it is not unlimited and courts can reverse their decisions.

The EEOC is responsible for enforcing several of the anti-discrimination statutes, and they used a recent case to decide that those statutes already prohibit sexual orientation discrimination.  See Baldwin v. Dep’t of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015).  In Baldwin, a temporary air traffic controller filed a complaint with the EEOC when he was passed over for a permanent position.  The controller, who is gay, alleged that his supervisor had made several discriminatory statements about his sexual orientation leading up to the decision about the permanent job and filed a complaint.  The first complaint was dismissed with the holding that sexual orientation discrimination was not illegal.  The controller appealed the dismissal and the EEOC overturned the lower decision (the complaint process for federal employees is complicated so this is a very shortened description).

In it’s very detailed decision, the EEOC held that there was an “inescapable link between allegations of sexual orientation discrimination and sex discrimination.”   The Commission noted that sexual orientation discrimination necessarily involves treating an employee less favorably because of the employee’s sex.  They provided an example of a lesbian employee disciplined for displaying a photo of her female spouse while a male employee would not be disciplined for displaying a photo of his female spouse.  Additionally, the Commission stated that sexual orientation discrimination is also association discrimination on the basis of sex, because the employees are treated differently for associating with a person of the same sex.  Finally, the Commission stated that sexual orientation discrimination is discrimination based on gender stereotypes, another type of discrimination already prohibited by the anti-discrimination statutes.  Therefore, the Commission held that because sex discrimination is already prohibited under current law, sexual orientation must also be prohibited.

The EEOC’s decision in Baldwin is virtually guaranteed to be challenged in the courts, either through an appeal or a lawsuit when the EEOC next attempts to challenge sexual orientation discrimination.  It would be pure speculation at this point to guess how a court faced with this interpretation of the anti-discrimination statutes would rule.  The Supreme Court’s same-sex marriage ruling will support the EEOC but it will be up against decades of court (and EEOC!) decisions that held sexual orientation discrimination was not sex discrimination.  Likely this will only be finally decided by another trip to the Supreme Court (unless of course congress is able to just pass the Employment Non-Discrimination Act that has been introduced in every congress since 1994).

If you are a Missouri NEA member and feel that you are being discriminated against based on your sexual orientation, contact your UniServ Director immediately for support.  While the legal fighting over this issue is likely to continue for some time, there are several ways that UniServ Director’s can work to make the situation better immediately.

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