By Michael Dorf
In the wake of Obergefell v. Hodges, some commentators observed that by basing the decision chiefly on the fundamental right to marry--with principles of equality playing a supporting role--the SCOTUS missed an opportunity to establish that sexual orientation is a suspect or semi-suspect classification, and thus to strike a blow for LGBTQ equality more broadly. Had the Court instead (or in addition) squarely held that heightened scrutiny applies to discrimination based on sexual orientation, that would have implied, among other things, that LGBTQ government employees (at all levels of government) would be protected against workplace discrimination and that the government may not discriminate on the basis of sexual orientation (absent a very good reason) in any context. Last week's ruling by the EEOC that Title VII of the 1964 Civil Rights Act already bars workplace discrimination on the basis of sexual orientation fills some of the gap left open by Obergefell and in important ways goes farther.
The EEOC held that sexual orientation discrimination is sex discrimination, which is expressly covered by Title VII. Tracking the standard arguments in the academic literature, the EEOC offered two reasons. The first is formal: " 'Sexual orientation' as a concept cannot be defined or understood without reference to sex." Second, sexual orientation discrimination encompasses a violation of the core substantive norm that the prohibition against sex discrimination targets: "Sexual orientation discrimination also is sex discrimination because it necessarily involves discrimination based on gender stereotypes."
In its relatively short opinion, the EEOC relies on prior administrative and judicial precedents in this and other areas and makes quick work of two arguments offered against its decision. Some employers and courts argued that sexual orientation is not encompassed by sex because the Congress that enacted Title VII would not have intended or expected sex to encompass sexual orientation. But the EEOC cited and quoted Justice Scalia's 1998 opinion for a unanimous Court finding that male-on-male sexual harassment can violate Title VII's prohibition on sexual harassment (which itself is inferred from the general prohibition on sex discrimination). As he wrote there: "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed."
The EEOC also rejected the objection that Congress's (repeated) failure to enact legislation specifically forbidding workplace sexual orientation discrimination means that there is no such prohibition. But as the opinion notes, SCOTUS case law cautions against inferring such a lesson from congressional failure to enact new legislation.
Readers are invited to discuss among themselves the question whether the EEOC ruling is persuasive. I find it so, but that should not come as a surprise, given that it tracks views I have long held. Before closing, I want to make four further observations about the implications of the ruling:
(1) Although the EEOC ruling came in a case involving a government employer, the decision relies on Title VII's language, which applies to private employers as well (if they have 15 or more employees). In this respect, the ruling is much broader than would have been a SCOTUS ruling that the constitutional guarantee of equal protection subjects sexual orientation discrimination to heightened scrutiny. That would have (formally) only applied to government.
(2) That parenthetical "formally" in the preceding sentence is meant to indicate that the SCOTUS has tended to treat federal antidiscrimination law as largely coextensive with the constitutional guarantee of equal protection. Perhaps the leading example is the Bakke case, in which Justice Powell's controlling opinion (since endorsed by a majority of the Court) treated Title VI as coextensive with the Equal Protection Clause. To be sure, the Court does not treat every aspect of federal antidiscrimination law as reflecting constitutional meaning. For example, the Americans With Disabilities Act has been in force for a quarter of a century, but the Court still does not treat disability as a suspect or quasi-suspect classification. Nonetheless, if the Court is persuaded by the EEOC's interpretation of Title VII (especially if the Court is persuaded despite not giving the EEOC full Chevron deference), that position could exert a gravitational pull on the Court's approach to equal protection.
(3) Meanwhile, as a statutory matter, the EEOC will almost certainly apply its view that sexual orientation discrimination is sex discrimination outside the employment context to other contexts in which federal law forbids sex discrimination. That will provide protection against discrimination to LGBTQ Americans in many areas of life--but notably not in public accommodations, because the federal public accommodations law does not forbid sex discrimination. (Shocking, I know.) Accordingly, private shopowners who wish to deny service to LGBTQ Americans on the basis of sexual orientation will continue to be able to do so, absent a state or local prohibition or an amendment to the federal law by Congress
(4) Perhaps the most important medium-term consequence of the EEOC ruling, assuming it is upheld by the courts, would be to kill ENDA, the proposed Employment Non-Discrimination Act that would bar employers from discriminating on the basis of sexual orientation. It has long been a goal of LGBTQ rights groups--although last year some key groups withdrew their support when they concluded that, in the wake of the Hobby Lobby case, the exceptions for religious exercise in the bill would too seriously undermine the protections against discrimination. Of course, the EEOC ruling, as a construction of Title VII, is itself subject to religious exceptions pursuant to the same Religious Freedom Restoration Act (RFRA) that was at issue in Hobby Lobby. Although such exceptions certainly do somewhat undermine the protection now afforded by Title VII, the EEOC ruling is nonetheless an important step forward, providing the protection that would have been provided by ENDA.