The Equal Employment Opportunity Commission (EEOC) has ruled, 3 to 2, that Title VII of the Civil Rights Act of 1964 bars sexual orientation-based employment discrimination as a form of sex discrimination, which Chris Geidner at BuzzFeed called “a groundbreaking decision to advance legal protections for gay, lesbian, and bisexual workers.”
The EEOC’s ruling deals with sexual orientation (lesbian, gay, bisexual); the agency had previously found that discrimination on the basis of gender identity, transitioning, or transgender status was covered by the civil rights statute as sex discrimination, and has sued employers on that premise.
But as Walter Olson of the Cato Institute has noted in a series of posts, including here, courts have built a record of knocking down the EEOC on its stretchy interpretations of law. (Geidner’s article claims the contrary, but Olson’s evidence seems persuasive.)
To the extent that an employer could, say, fire a lesbian employee based on provable bias but not fire any of the heterosexual women it employs, the claim of anti-female animus (the basis of what has generally been deemed sex discrimination under the statute) would seem difficult to prove. Still, it will be interesting to see how this plays out, and it could even end up before the Supreme Court.
More. From libertarians who strongly support same-sex marriage. Walter Olson blogs: EEOC: Let Us Imagineer ENDA For You. And from Scott Shackford at Reason.com: EEOC Attempts to Administratively Implement Protections Against Anti-Gay Discrimination.
From our comments, Craig123 writes:
You can support nondiscrimination and still think the EEOC sholudn’t be stretching the law beyond its limits, because if (as is widespread under this administration) the law means anything that a federal agency says it means, some day an administration you don’t like is going to come in and declare, by fiat, that all the laws you like don’t actually say what they say.
These are valid concerns not to be lightly dismissed or, per some, vilified. It’s also possible that the EEOC’s ruling, if it stands, would be less offensive to individual liberty than the broad federal statute activists now demand, applying the race-discrimination standard to sexual orientation regarding employment and public accommodations (which, for them, includes providing creative services in support of same-sex weddings, with no religious exemptions).
11 Comments for “The EEOC’s LGB Fiat”
posted by Houndentenor on
Obviously, this needs to be addressed by Congress. The public supports it and in fact most Americans think it’s already illegal to discriminate against gay people and many companies already have policies against it. So why is it so difficult to get something that most people think is a good idea and most think is the law anyway through Congress? I think we all already know the answer to that.
posted by Tom Scharbach on
The EEOC ruling underscores the need for Congressional and state legislative action. At present, sexual orientation is not included in federal employment non-discrimination laws, and only a minority of states (luckily, though, many of the more populous states, so about 40% of gay/lesbians are protected) include sexual orientation in state laws.
Adding sexual orientation to employment non-discrimination laws is a no-brainer from a public policy standpoint, and next to impossible from a political standpoint.
posted by Mark Peterson on
Every post Stephen makes on public accommodations laws makes it seem as if he opposes these laws for gays and lesbians (though he seems to be OK with them for other protected groups). But he never (I believe) has explicitly come out to say he opposes public accommodations protections.
Now he’s doing the same thing for anti-discrimination policy. The menacing title (“Fiat”) makes it seem he thinks it should be lawful for a business to fire a worker just because he’s gay–but he won’t come out and say so explicitly.
posted by craig123 on
You can support nondiscrimination and still think the EEOC sholudn’t be stretching the law beyond its limits, because if (as is widespread under this administration) the law means anything that a federal agency says it means, some day an administration you don’t like is going to come in and declare, by fiat, that all the laws you like don’t actually say what the say.
posted by Mark Peterson on
You certainly can. But nothing in Stephen’s post suggests this is what he believes. You’d think if he believed that Congress should pass a law saying that a business shouldn’t be able to fire a gay employee just because he’s gay, he’d come out and say so, and then go on to make a procedural point about how EEOC should nonetheless reject all claims at this stage. As with public accommodations questions, he just leaves the inference that he’s fine with the government doing nothing to prevent private discrimination against gays and lesbians, but refuses to come out and say so directly.
posted by Houndentenor on
We already lived through eight years of that with Bush Jr.
I’m not sure this is going to hold up in court and it should be addressed by Congress. But that’s not going to happen until Democrats can take back both houses and that’s not going to happen for quite some time.
So what is your plan for addressing workplace discrimination against gay and trans people?
posted by Tom Jefferson III on
I am not sure if Stephen understands how Federal Commissions, Departments and Agencies work.
The Congress gave the The Equal Employment Opportunity Commission (EEOC) certain powers and responsibilities via enabling legislation (i.e. enabling legislation).
If a majority of the Congress dislikes what the Commission has done, it can always pass additional legislation.
In the past, the court did rule that sexual harassment laws can apply to cases where the target of the harassment is gay. It is a complicated series of legal opinions dealing with ‘sex’ harassment.
posted by craig123 on
I’m not sure TJIII knows how to leave a comment that is another but snark. Just what did Stephen get wrong, and what does harassment have to do with any of this???
posted by Houndentenor on
Nor do you seem to know how to comment with anything other than ad hominem attacks against anyone who isn’t a dittohead.
posted by tom jefferson Iii on
Stephen seems to believe that this is “government by fiat.”
I pointed out that this is something that departments and agencies do – under both party administrstions – because of Congressional laws, and Congress can certainly overturn this ruling.
This is how the system works under Democrats and Republicans.
He then quoted from folks who would prefer -as members of a particular philosophy- not have equal opportunity laws apply to the private sector (undet the guise of being pro free market) .
Their are good and bad ways to object to what the Commission did.
Frankly, it will be tough to get any Congresd to pass ENDA, but it more likely to happen or be seriousky be considered when Democrats have a majority.
The challenge is that in some U.S. Congressional races, supporting anything to do with the “gay agenda” can be a bad careet move. In some of these districts you got a choice between a very anti gay Republican and a moderate-to-conservative Democrat who would rather not to tied to “liberal” causes. A conversation should happen about this among supporters of civil rights legislation, but it dosent seem to be coming down the pipeline.
posted by Lori Heine on
I can understand the confusion over why discrimination on the basis of race is bad, bad, bad, but discrimination based on sexual orientation isn’t.
I know…because religion. But those who have actually studied history know that at one time, religion was used to rationalize racial discrimination too.
I’m speaking of this beyond the question of what will or will not be legislated. Why is it that conservatives are incapable of evolving beyond the ends of their own noses?
They haven’t changed. Will they ever? Every time, “it’s different this time.” And every time, their enablers tell us to give them more time.
More time to do what–besides refuse to change?