With the recent U.S. Supreme Court decision making same-sex marriage bans illegal across the country, many people have raised the question of discrimination. It may be legal for same-sex couples to marry, but it’s still also seemingly legal in many areas for businesses to discriminate based on sexual orientation. These two issues are fundamentally incompatible.
The Equal Employment Opportunity Commission (EEOC) must have taken note of this. As of July 16, 2015, they’ve issued a new case ruling declaring that discrimination based on sexual orientation is already illegal and is covered by Title VII of the Civil Rights Act. As most of us know, Title VII specifically prohibits discrimination on the basis of sex, race, religion, color, or national origin. What the EEOC has done with this ruling is clarified that Title VII’s prohibition of discrimination based on sex is already enough to prohibit discrimination based on sexual orientation. In other words, it doesn’t need separate protection because that protection already exists.
How Does Title VII Protect from Discrimination Based on Sexual Orientation?
Some may be looking for an explanation of how sex or gender is equated to sexual orientation. The two items are not one and the same; however, applying the idea of discrimination based on sex to discrimination based on sexual orientation is actually simple and straightforward.
Here is how they are connected: sex discrimination includes any discrimination that is based on sex or gender stereotypes. If an employer discriminates based on the stereotype that a person should be attracted to someone of the opposite sex, then that is sex discrimination. In other words, if an employer fires an employee because they do not think that one man should be attracted to another man, that employer has applied a sex-based stereotype that men should be attracted to women. According to the EEOC, that’s sex discrimination, pure and simple. The law already prohibits discrimination that “relied on sex-based considerations.”
This can also be viewed as a form of taking a person’s gender into account when making employment decisions—which is another form of sex discrimination. When an employment decision is based on sexual orientation, that action, by definition, takes into account the sex of the employee in question. This is not allowed under existing law.
What Does This Mean for Employers?
The EEOC was ruling on a case brought against a federal employer. As such, the ruling will immediately apply as precedent for federal employees. That said, even though the current EEOC ruling directly extends only to federal employees, it can be considered to apply nearly universally since the EEOC represents cases for private employers as well.
For most employers—those who were not discriminating based on sexual orientation—this does not actually change anything. But for any employer that based any employment decision on the sexual orientation of an employee or applicant, it could mean lawsuits going forward.
It remains to be seen how the laws will treat employee benefits (such as requiring these to be extended to all spouses), but the assumption is that with the combined rulings of the Supreme Court and the EEOC, every employer will need to ensure all policies and benefits are updated to allow same-sex spouses equal treatment. It is presumed that employers should not wait on any lawsuits to proceed with this.
Employers will also need to ensure their employees are trained or retrained in nondiscrimination—and that the nondiscrimination training explains that sexual orientation is protected under the basis of sex discrimination.
All of this said, this topic could still be up for interpretation by the Supreme Court, but the momentum and recent decisions would indicate there’s little reason to think it will not stand. The Supreme Court regards EEOC rulings highly when making its own interpretations.
This article does not constitute legal advice. Always consult legal counsel with specific questions.