Tuesday, July 21, 2015

The EEOC Sexual Orientation Ruling

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.


Joe said...

See also:


This ruling shows the clear connection between sex and sexual orientation discrimination. But, that would be a big step for the USSC to take across the board, since sex discrimination has clear heightened scrutiny. Some wanted them to just do it, but that's not really how they work -- change comes more slowly in the courts, at least on various issues for the Roberts Court. The EEOC ruling was 3-2.

And, to the Administration has been ahead on this subject -- it supported heightened scrutiny for sexual orientation. Obergefell includes various sticks to that without going the next step. But like the 9th Cir., lower courts would easily make the leap if they wanted to do so. The material was available here too and has already been applied to some extent to help GLBT already. A clear statute, especially with a 3-2 ruling showing there is some debate, would be helpful.

Joe said...

ETA: The Obergefell opinion included a discussion of changing marriage norms and how equality and due process was connected that covered a lot of sex discrimination material. It showed the connection between changing norms in the sex/gender area and the same sex marriage issue. Thus, e.g., end of coverture was a radical change in marriage, one that once would have seen as laughable.

The leap again is not that hard and a few lower court judges did so. And, the Supreme Court is starting to go half-way as it is in opinions by a conservative leaning justice.

Greg said...

Thanks Joe, that verdict column above does a good job of explaining some of the nuances of the EEOC ruling.

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.)

Two words: Ladies Night. I suspect this is why public accommodations law does not forbid sex discrimination. Unfortunately, protection for this culturally acceptable form of discrimination results in protection for less acceptable forms.

Samuel Rickless said...

I haven't read the EEOC opinion yet, but at first blush this strikes me as an overreading of the relevant statute (for desirable ends). [IMHO, the same thing happened when the Due Process Clause was read by SCOTUS, again for desirable ends, as having roughly the same meaning and effect as should have been given to the Privileges or Immunities Clause.]

One main problem is that I do not see why "sexual orientation discrimination...necessarily involves discrimination based on gender stereotypes". Sure, sexual orientation discrimination CAN involve discrimination based on gender stereotypes. Suppose I run a fitness center and I want the male personal trainers I hire to be and look "manly". Suppose further that I refuse to hire gay personal trainers because I think that gays as a rule are insufficiently "manly". In that case, I am basing my refusal to hire on a gender stereotype. But now suppose that I have a general rule against hiring people who are immoral or disposed to do immoral things. (This is not uncommon.) And suppose further that I think that a person who is attracted to members of the same sex performs or is disposed to perform immoral acts, on the grounds that (i) sexual activity between members of the same sex is unnatural and (ii) unnatural acts are immoral. In that case, my refusal to hire gay people is not based on a gender stereotype.

I think that discrimination against LGBTQ Americans is wrong and should be outlawed. I just don't see how one gets to shoehorn a prohibition on sexual orientation discrimination into a prohibition on sex discrimination. If the argument is that the one kind of discrimination is "reasonably comparable" to the other, then it seems to me that we have carte blanche to read statutes so broadly as to rob them of their meaning. Most everything is "reasonably comparable" to everything else, in some respect or other. Discrimination against non-citizens, for example, is reasonably comparable in many ways to sex discrimination. So where do we stop the train? Does discrimination against persons on grounds that have almost *any* relation to sex count as "sex discrimination"?

Samuel Rickless said...

Ok, I've read the ruling. The main claim is that discrimination that would not have occurred if the complainant had been of a different sex counts as "discrimination...based on sex" or discrimination "because of [the complainant's] sex". So "but for" causation is supposed to be the basis for the interpretation of "based on" and "because of".

There are several problems with this. The first is that "because of" and "based on" are usually understood as having more narrow application than "but-for causation". We wouldn't say, for example, that the bomb exploded because of the presence of oxygen, but because of the fact that it was detonated, even though the presence of oxygen is a but-for cause of the explosion. The second is that "because of", in the context of human choices, doesn't mean the same as it does in the context of events that do not involve human choices. In the context of human choices, "because of" concerns *motives*. And motives are not fixed by but-for causation.

More particularly, the EEOC uses the following standard example. Male M displays a photo of his male spouse on his desk and is fired. EEOC says that if it's true that if M had been female M would not have been fired, then M was fired because of his sex. But this is false. M was fired because he displayed a photo of a spouse who is the same sex as he, not because he displayed a photo of a male spouse. Had M been female and displayed a photo of a spouse of the same sex, M would have been fired. Of course, we can describe the situation as one in which M was fired, displayed a photo of a male spouse, and had M displayed a photo of a female spouse M would not have been fired. All true. But also irrelevant to the *motives* or *intentions* behind the firing.

None of this is new. This controversy has been around for a while. I vaguely remember seeing it in the Goodridge materials I read a while back....

Joe said...

I don't understand the hypo. The reason why the person was fired was because of the sex of the spouse. Mark or Mandy, the spouse was still judged on sex.

But, perhaps it is best to read the opinion. It was 3-2, so probably some will find a reason it is wrong. It's quick reading though, so not too hard. Or, perhaps check out the Verdict essay.

Don Smith said...

@Samuel - in the circumstances you describe, sexual orientation discrimination is not discrimination based on sex. It is discrimination based on religion. Either way, it's covered by existing law.