No Gay Is Left Behind - Title VII Employment Protections Come to the LGB Community

This landmark opinion from the EEOC [Baldwin v. Foxx] confirms what we have long argued in our cases: discriminating against gay, lesbian and bisexual employees violates federal law. This ruling is likely to have enormous positive effects because EEOC interpretations of Title VII are highly persuasive to the courts -- they tend to be predictive. Given the clarity and logic of this opinion, most courts are likely to stop simply referring to old, illogical rulings about Title VII coverage. [Lambda Legal, see below]

The breakthroughs continue to flow for America's LGBT community. This week, on the heels of the national expansion of the right to marry, the Department of Defense announced it will no longer separate trans servicemembers, in preparation for full inclusion in the armed forces at the conclusion of a six month revision of regulations. Then, GLAD and the Washington Lawyers Committee for Civil Rights and Urban Affairs (WLC) filed a class action suit in federal district court in the First Circuit in Massachusetts, Cote, et al. v. Wal-Mart Stores, Inc., the first lawsuit filed on behalf of gay workers under Title VII since the Obergefell decision. The Equal Employment Opportunity Commission (EEOC), in response to a complaint from Jacqueline Cote, issued a final determination stating that Wal-Mart's treatment of Ms. Cote amounted to unlawful sex discrimination, and followed this up with a right-to-sue letter.

As Allison Wright, the GLAD attorney leading this case, said,

Many LGBT people across the country live without explicit protections from employment discrimination. Strengthening protections for LGBTQ people under Title VII will help the poverty-stricken LGBTQ community achieve economic equality and will assist all LGBTQ workers in receiving equal treatment.

Wal-Mart is this country's leading private employer, and this case has the potential of making its way to the Supreme Court. Or, maybe not, as it should be pretty evident to Wal-Mart, particularly in light of its having already changed its policy on January 1, 2014, that denying these benefits is unlawful, and pursuing this case will end up costing them far more in terms of prestige.

As if all that was not enough, yesterday, on July 16th, came the blockbuster decision from the EEOC, the one I'm calling the "Gay Macy" case. In Complainant v. Foxx, the EEOC ruled that

[A]llegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex. [my bold]

For those of you who've forgotten, the Macy case of April 20, 2012, was the pronouncement from the EEOC that trans persons are covered under Title VII of the 1964 Civil Rights Act against discrimination in the employment sector on the basis of sex. Since then hundreds of trans persons have won their discrimination cases in court and via settlement (as described by Commissioner Chai Feldblum).

Now inclusion of the "T" under Title VII has been expanded to include the "LGB" as well, or, as I've put it over the past three years, it's time to "Leave No Gay Behind." This week, the EEOC, in a 3-2 decision (the Macy decision was 5-0) thanks to Commissioner Feldblum, made full inclusion a reality.

The critical paragraphs, in relatively plain English:

Title VII's prohibition of sex discrimination means that employers may not "rel[y] on sex-based considerations or take gender into account when making employment decisions. See Price Waterhouse v. Hopkins. 490 U.S. 228, 239, 241-42 (1989); Macy v. Dep't of Justice. EECX Appeal No. 0120120821, 2012 WL 1435995, (EEOC Apr. 20, 2012) (quoting Price Waterhouse, 490 U.S. at 239). This applies equally in claims brought by lesbian, gay and bisexual individuals under Title VII. When an employee raises a claim of sexual orientation discrimination as sex discrimination under Title VII, the question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. It is not. Rather, the question for purposes of Title VII coverage of a sexual orientation claim is the same as any other Title VII case involving allegations of sex discrimination -- whether the agency has "relied on sex-based considerations" or "take[n] gender into account" when taking the challenged employment action.

In the case before us, we conclude that Complainant's claim of sexual orientation discrimination alleges that the Agency [Federal Aviation Administration, Department of Transportation] relied on sex-based considerations and took his sex into account in its employment decision regarding the permanent FLM position. The Complainant, therefore, has stated a claim of sex discrimination. Indeed, we conclude that sexual orientation is inherently a "sex-based consideration," and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII. A complainant alleging that an agency took his or her sexual orientation into account in an employment action necessarily alleges that the agency took his or her sex into account.

So what does this mean, to a community that has been fighting for four decades to pass some form of the Employment Nondiscrimination Act (ENDA)? It means that, for all intents and purposes, those protections have just been provided by the federal government. They are not explicit, as our gay lawyers are wont to say these days, but they exist. Based on the remarkable progress in protecting trans rights over the past three years, and the very strong deference the courts offer to the EEOC, and the powerful opinion of Justice Kennedy in Obergefell last month, I believe it's fair to conclude that the entire LGBT community today is protected against employment discrimination in all fifty states.

For the analysis of one of the nation's leading LGBT legal impact organizations, I give you Lambda Legal's Greg Nevins, who argued the historic Glenn v. Brumby case in the Eleventh Circuit leading to 14th Amendment protections for trans persons under the U.S. Constitution:

This landmark opinion from the EEOC confirms what we have long argued in our cases: discriminating against gay, lesbian and bisexual employees violates federal law. This ruling is likely to have enormous positive effects because EEOC interpretations of Title VII are highly persuasive to the courts -- they tend to be predictive. Given the clarity and logic of this opinion, most courts are likely to stop simply referring to old, illogical rulings about Title VII coverage. A few may disagree, but most probably will be guided by the Commission's straightforward approach.

That sounds pretty clear to me. I will follow this report with a review of the LGBT community's response to this decision, and the contrast to its response to the Macy decision of 2012. For now, I leave you with a more hopeful and accurate variation of the meme that's been promoted by the community since the Obergefell decision on June 26:

You got married on Saturday -- congratulations! -- and, as a result, got fired on Monday.

Now, its Tuesday -- go claim your rights and file with the EEOC.