On July 17, 2015, the Equal Employment Opportunity Commission (EEOC) issued a historic ruling, which affirmed that sex-discrimination protections of Title VII of the Civil Rights Act of 1964 extend to protect at least some employees who are discriminated against on the basis of sexual orientation. This ruling complements a previous ruling by the EEOC that Title VII’s prohibitions of discrimination “on the basis of sex” include protections again gender-identity discrimination faced by transgender employees across the country. The breadth of the July 17 decision remains to be seen; while the ruling came out of a case involving a federal employee, its rationale would seemingly extend to employees of private companies as well.
While the ruling is a tremendous advance for LGBT civil-rights protections, it is far from the end of the struggle for full civil-rights protections against LGBT discrimination. In addition to the breadth of the ruling being uncertain, as an initial matter, the EEOC decision does not have the same precedential force as a Supreme Court or even a lower federal-court ruling. The 3–2, party-line administrative ruling certainly reflects the current litigation approach of the EEOC, and should be given substantial weight by federal courts across the country, but it may encounter resistance from more conservative courts or even future EEOC officers and administrations. Additionally, while Title VII provides protections against employment discrimination, it does not extend to discrimination in housing, education, and public accommodations, also common contexts in which LGBT individuals face discrimination.
Finally, the majority of states still lack comprehensive protections against sexual orientation and gender-identity discrimination in the contexts of employment, housing, and public accommodations in their civil rights statutes, and the effort to extend such protections is increasingly met with resistance in the name of religious freedom.
Although LGBT rights are still protected to a much lesser degree than civil rights related to other protected classifications, the EECO’s ruling is significant progress for litigants and lawyers confronting employment discrimination at the workplace.
Keywords: litigation, civil rights, LGBT, EEOC, Title VII
— Nancy Marcus, LL.M., S.J.D., assistant professor of law, Indiana Tech Law School