EEOC Finds That A 50 Year Old Law Bans Something It Doesn’t Even Mention

Relying on a particularly strained and incredulous legal analysis, the EEOC has ruled that laws against discrimination based on gender also bar discrimination based on sexual orientation.


The Equal Employment Opportunity Commission issued a ruling yesterday that purports to hold that discrimination based on sexual orientation is barred under laws passed more than fifty years ago as a form of gender discrimination, but it’s not at all clear what impact the ruling will have or whether it has any rational basis in law at all:

WASHINGTON — The Equal Employment Opportunity Commission has ruled that existing civil rights law bars sexual orientation-based employment discrimination — a groundbreaking decision to advance legal protections for gay, lesbian, and bisexual workers.

“[A]llegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex,” the commission concluded in a decision dated July 15.

The independent commission addressed the question of whether the ban on sex discrimination in Title VII of the Civil Rights Act of 1964 bars anti-LGB discrimination in a complaint brought by a Florida-based air traffic control specialist against Transportation Sec. Anthony Foxx.

The ruling — approved by a 3-2 vote of the five-person commission — applies to federal employees’ claims directly, but it also applies to the entire EEOC, which includes its offices across the nation that take and investigate claims of discrimination in private employment.

While only the Supreme Court could issue a definitive ruling on the interpretation, EEOC decisions are given significant deference by federal courts.

In 2012, the commission addressed a similar issue regarding whether transgender workers are protected under the sex discrimination ban from discrimination. There, in a case brought by Mia Macy against the Bureau of Alcohol, Tobacco, Firearms and Explosives, the commission ruled that gender identity-based discrimination is barred by the sex discrimination ban. In December 2014, the Justice Department announced a similar view of the law — stating that it would apply that interpretation in its cases.

While the EEOC had been pushing toward today’s decision with cases and even field guidance addressing coverage under Title VII of specific types of discrimination faced by gay people, the July 15 decision states that “sexual orientation is inherently a ‘sex-based consideration.'”

In reviewing courts’ prior interpretation of the words of Title VII, the commission acknowledged plainly that sexual orientation itself is not listed as a type of discrimination barred in the 1964 law.

“[T]he question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. It is not,” the commission found. Instead, the commission stated that the question is the same as in any other Title VII sex discrimination case: “whether the agency has ‘relied on sex-based considerations’ or ‘take[n] gender into account’ when taking the challenged employment action.”

The commission found that sexual orientation discrimination is sex discrimination for several reasons. Among the reasons, the commission stated, is because sexual orientation discrimination “necessarily entails treating an employee less favorably because of the employee’s sex” and “because it is associational discrimination on the basis of sex.”

After a review of the case law regarding similar challenges to employment practices alleging a violation of Title VII where the initial understanding of the law would not have included that coverage, the commission stated, “The courts have gone where the principles of Title VII have directed.”

“Our task is the same,” the decision found. “We therefore conclude that Complainant’s allegations of discrimination on the basis of sexual orientation state a claim of discrimination on the basis of sex. We further conclude that allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex.”

Mark Joseph Stern at Slate explains the Commission’s ruling further:

As I’ve explained before, the EEOC’s theory here is really quite straightforward. Title VII prohibits discrimination on the basis of sex, including, the Supreme Court has ruled, irrational sex stereotyping. The EEOC previously held that when an employer discriminates a gay employee for being effeminate—or a lesbian employee for being butch—that qualifies as illegal sex stereotyping. Now the commission has taken that logic one step farther. When an employer disapproves of a lesbian employee’s orientation, he’s really objecting to the fact that a woman is romantically attracted to another woman. This objection is based on irrational, stereotyped views of femininity and womanhood. Thus, when the employer discriminates against his lesbian employee, that discrimination is based in large part on her sex, and on his anger that she does not fit into her gender role.

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 men. 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.

Dale Carpenter at The Volokh Conspiracy is skeptical of the Commission’s ruling:

The EEOC’s view on sexual orientation, however, runs counter to the rulings of several circuit courts. These courts have reasoned that “sexual orientation” is not among the list of prohibited bases for employment action, that Congress did not intend to eliminate anti-gay discrimination when it enacted Title VII, and that Congress has repeatedly refused to add “sexual orientation” to employment protections.

The EEOC calls these earlier circuit court decisions “dated,” and some of them have been undermined by subsequent precedents in the same circuits recognizing that gender stereotyping, including gender stereotypes evidenced by anti-gay comments, is sex discrimination. Indeed, the Commission argues, the concept of sex discrimination as it has been elucidated over the years by the federal courts, including the Supreme Court, is broad enough to encompass sexual orientation discrimination. Such discrimination, it notes, rests on stereotypes about how men and women should behave and punishes employees for their association with others of the same sex. “‘Sexual orientation’ as a concept,” the commission held, “cannot be defined or understood without reference to sex.”

The interesting question now is how many circuit courts will go along with the EEOC’s new interpretation of Title VII. The EEOC’s views on the scope of Title VII are considered persuasive, but not binding, authority on the courts. The next president could appoint commission members who feel differently about the meaning of Title VII, and they could reverse this divided opinion.  Either way, a circuit split on the issue could be resolved by the Supreme Court in the next few years.

Not surprisingly, this ruling, which at the moment only has a very limited application to some Federal employees, is being hailed by gay rights organizations that have been lobbying for laws barring discrimination based on sexual orientation for some time now. One of those, the Employment Non-Discrimination Act, failed to pass Congress even when Democrats were in control through the 2010 elections and doesn’t seem to have much hope have passing with Republicans in control of both the House and the Senate until at least 2017, and in control of the House for well beyond that in all likelihood. If Federal Courts were to adopt the Commissions ruling here, after all, than the ENDA would effectively be unnecessary because laws that were passed fifty years ago meant to ban discrimination in employment based on gender would now be used to ban discrimination in employment based on sexual orientation, meaning that ENDA would be unnecessary. Additionally, the reasoning that the Commission used here could potentially be sued to apply existing anti-discrimination laws that apply to other areas of the economy to sexual orientation via judicial or administrative fiat rather than through the legislative process.

For advocates of gay rights concerned largely only with the outcome, the Commission’s ruling here is a great thing and the possible future I outlined above is something to forward to. For anyone who cares about the Rule Of Law, though, there’s something about the Commission’s ruling here that is deeply troubling and the legal reasoning seems specious at best. The law on which the Commission relies here is based in Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment based on “race, color, religion, sex or national origin.” The legislative history of the Civil Rights Act is quite accessible, and it is eminently clear that when Congress passed the law there was absolutely no consideration given to the idea that the law they were passing would apply to sexual orientation discrimination. To a large degree, of course, this is because there really wasn’t a “gay rights movement” in existence at the time and most gay and lesbian Americans lived their lives in secret. We are happily largely past those days, but it is still an undeniable fact that the law that the Commission bases its decision here on was not intended to apply to sexual orientation discrimination all, interpreting in the manner that the 3-2 majority on the Commission did here seems to me to be a clear overreach that simply isn’t supported by existing law. Indeed, as Walter Olsen points out, there’s plenty of evidence to support the idea that the Commission has overreached here:

It’s not the commission that gets to have the final say on that, however; it’s the federal courts. And there is a fair trail of precedent, including circuit court authority, rejecting the proposition that sex discrimination in this setting can be stretched to cover sexual orientation discrimination. Against that, it will be argued that some recent case law has nonetheless drifted toward the idea; more important, judges will be asked to defer to the EEOC in its (new) expert opinion.

But it’s not easy to think of an agency to whose views federal courts nowadays give less deference than the EEOC. As I’ve noted in a series of posts, judges appointed by Presidents of both political parties have lately made a habit of smacking down the commission’s positions, often in cases where it has tried to get away with a stretchy interpretation of existing law. See, for example, the Fourth Circuit’s rebuke of “pervasive errors and utterly unreliable analysis“ in EEOC expert testimony, Justice Stephen Breyer’s scathing majority opinion in Young v. U.P.S. on the shortcomings of the EEOC’s legal stance (in a case the plaintiff won), or these stinging defeats dealt out to the commission in three other cases.

It seems entirely probable that, when this matter does make its way to the Courts, that the Commission will suffer a similar fate on this issue. Even assuming for the sake of argument that discrimination in employment based on sexual orientation should be impermissible, and it most certainly should be impermissible in the Federal employment context at issue in the case that was before the Commission, there is a right way and wrong way to change the law on that matter. What the Commission is trying to do here, using a 51 year old law to ban something was clearly not contemplated at the time the law was drafted, is not the right way to achieve an otherwise laudable goal.

Here’s the Commission’s ruling:

EEOC Sexual Orientation Discrimination Ruling by Doug Mataconis

FILED UNDER: Economics and Business, Law and the Courts, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook


  1. James Pearce says:

    What the Commission is trying to do here, using a 51 year old law to ban something was clearly not contemplated at the time the law was drafted, is not the right way to achieve an otherwise laudable goal.

    Meh…who cares?

    We live in the now.


  2. Thersites says:

    The EEOC is really twisting the language of the statute here. As Scott Shackford, a gay journalist, notes, there is nothing in the language or history of the 1964 Civil Rights Act “to indicate that sexual orientation” is covered, and the EEOC’s interpretation is “simply beyond” Congress’s intent. Moreover, the cases the EEOC erroneously cites as supporting its position have “nothing to do with actual sexual orientation,” and in citing them, the EEOC wrongly conflates “gender expression” and “sexual orientation.”


  3. Gustopher says:

    Gender and orientation are entirely different things, and at first glance it seems like the EEOC got this wrong in applying it to gays, lesbians and bisexuals.

    However, it would also appear to be entirely reasonable to apply this to the transgender — even if the 50 year old law was never intended to apply at the time.


  4. stonetools says:

    The problem here is that the Republicans are never going to pass a strong federal ENDA guaranteeing gay rights in the workplace. The EEOC is trying to give gays some protection, but it’s unlikely the Supreme Court is going to allow the EEOC to extend protections to gays that way. Now according to Justice Roberts (and presumably Doug) , gays should just resort to the political process and hope they can get ENDA passed. Justice Roberts seems hopeful, but I don’t see that happening with this Congress or indeed any Congress before the 2020 redistricting-and maybe not even after then.
    Are we really OK with gays having no legal protections in the workplace for the foreseeable future? If you are , well, then I guess you can just sit back, snipe at the EEOC, and just ¯\_(ツ)_/¯at the Republicans refusing to pass ENDA.


  5. Just Me says:

    Gay rights groups should focus on the state level while lobbying the Federal to pass anti discrimination laws.

    The vast majority of the employed are working in jobs where a state law would provide them more protection. Pass it at the state level and the Feds will eventually follow suit.


  6. @Gustopher:

    In this particular case, yes, the fact that the employee in question is trangendered is arguably a good argument for applying traditional gender discrimination law. However, I can’t see that in the case of someone who is a gay male or a lesbian. This isn’t to say that such employment discrimination shouldn’t be illegal, but I think if it’s going to be done it has to be done the right way.


  7. DrDaveT says:

    @Doug Mataconis:

    the fact that the employee in question is trangendered is arguably a good argument for applying traditional gender discrimination law

    As noted by others, it’s not a gender discrimination law, it’s a sex discrimination law. Sex =/= gender.

    Sex is a biological attribute, usually unambiguous but not always. (See: “intersexuality“)

    Gender is a social and psychological construct (not to be confused with the linguistics definition). People of completely unambiguous sex might have a wide range of genders.

    The law is way behind in its awareness of these differences. Most law is stated in terms of biological sex. Some is stated in terms of sexual orientation, which is related to (but not remotely the same as) gender.


  8. stonetools says:

    @Just Me:

    Dunno where you are from , mate, but the states are probably even worse for passing gay rights laws than the Federal government. What are the chances of Alabama passing a gay non-discrimination law ? Or anywhere in the South?


  9. walt moffett says:

    Now to see how this plays on the campaign trail in Peoria as they used to say.


  10. Gromitt Gunn says:

    I would agree that the existing law as written should cover gender expression and identity, but that it should not extend to sexual orientation. Not that I want to be fired for being gau, obviously. I just don’t see federal law extending in the direction the EEOC is taking it.


  11. de stijl says:

    @Gromitt Gunn:

    Not that I want to be fired for being gau

    You are quite magnetic…


  12. de stijl says:

    IANAL, so I may have this terribly wrong, but since the passage of the 14th, why is this an unacceptable ruling? Why would sexual orientation be treated as a special circumstance?

    In fact, with a H/T to the originalists and the natural law advocates, are these are not new or special rights, but just rights that we have failed to fully apply to all Americans until now?

    Why should romantic attraction to the opposite gender have an employment privilege over same-sex attraction?

    Laws have meaning obviously, but do they not also have an legal impact beyond the text? They carry meaning and import beyond the parochial, yes?

    If A1 is licit, why is not A2 licit? Or to put the fine point on it, why is it legal that you can be fired solely for being gay when you cannot be fired, as a matter of law, for solely being female?

    Again, IANAL, but how are these things different?


  13. bill says:

    this pc bs is really getting crazy- heck, i remember a time when there were just boys & girls.
    of course none of this will ever be enforceable unless some idiot manager gets caught on tape saying something about it- so most hr dept’s will start issuing memos to limit such chit-chat.


  14. Tony W says:


    heck, i remember a time when there were just boys & girls.

    Yeah, those were the days when people had to fit your idea of what ‘okay’ was.

    Really, as long as *you* are comfortable what else matters?