EEOC holds (for now) that gay workers are protected by Title VII

This article looks at whether or not Title VII prohibits discrimination on the basis of sexual orientation.

A split between two federal executive branches, the Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ), both of which are responsible for enforcing Title VII of the Civil Rights Act could have a major impact on employment rights for gay workers. As Reuters reports, while the DOJ holds that gay workers are not protected by Title VII against discrimination in the workplace, the EEOC holds the opposite position. The unusual split in opinion between the two federal bodies is reflected in the fact that federal courts throughout the country have been similarly split over whether or not to extend Title VII protections to gay employees.

Split in federal bodies and courts

As was previously reported by Reuters, the split between the EEOC and the DOJ over how to interpret Title VII protections caused public controversy when both federal bodies filed competing amicus briefs in the 2nd Circuit's Zarda vs. Altitude Express case. The split was highly unusual not only for how public it was, but for the fact that both the EEOC and DOJ are responsible for enforcing Title VII, which protects employees from discrimination on the basis of race, gender, religion, disability, and other factors.

While the 2nd Circuit (and, beforehand, the 7th Circuit) sided with the EEOC's interpretation of Title VII and granted those protections to gay employees, other federal appellate courts have taken the opposite position. The 11th Circuit Court, for example, sided with the position of the DOJ that Title VII does not cover sexual orientation. A case currently before the 8th Circuit will be the fourth at the federal appellate level to decide on this issue and could further expose the split in interpreting gay rights under Title VII.

Does Title VII cover sexual orientation?

The issue comes down to determining whether Title VII covers sexual orientation. Title VII does not explicitly mention sexual orientation and most analysts agree that Congress did not intend to cover sexual orientation when they passed the Civil Rights Act. Title VII does, however, cover gender. The DOJ contends that gender should not be used as the basis for extending Title VII protections to gay and lesbian employees.

The EEOC, on the other hand, says that sexual orientation should be considered a function of gender. Sexual orientation, according to the EEOC, can only be understood in terms of gender, thus Title VII should be interpreted as protecting gay and lesbian workers.

Complicating the issue, however, is that the EEOC currently consists of just the acting chair (who is a Republican) and two Democratic appointees. Two new appointees were recently nominated by President Trump to serve on the EEOC, which would shift the balance of the EEOC more to the right. Thus, it is unclear whether the EEOC will maintain its position on Title VII protections for gay workers if and when those two new appointees are confirmed by Congress.

Employment discrimination law

For workers who believe their rights may have been violated, such as due to discrimination based on their race, gender, sexual orientation, religion, or another factor, should contact an employee rights attorney immediately. An experienced attorney can help workers defend their rights and may be able to assist them with pursuing whatever compensation they may be entitled to.