New EEOC Ruling: Progress but No Panacea for Gay Employment Protections

     The Equal Employment Opportunity Commission, the federal agency that administers the federal anti-discrimination laws, just issued a landmark ruling holding that the federal anti-discrimination law (Title VII) that prohibits “sex” discrimination inherently also prohibits discrimination on the basis of sexual orientation. This is definitely an exciting development that will help move the nation closer to having protections for gays and lesbians from employment discrimination. But to be clear, this is neither a “new” development, nor a cure for anti-gay discrimination in employment.
     First, the EEOC issued a statement back in February announcing this policy change, that the EEOC would henceforth interpret Title VII “sex” discrimination to encompass sexual orientation discrimination, and since then has been accepting and investigating complaints of sexual orientation discrimination. The significance is that this is the first application of that new policy pronouncement to an actual case that was litigated within the EEOC system. The EEOC handles litigation of discrimination claims made by federal employees against their federal employers, and investigates but does not generally litigate discrimination claims against private employers. In private cases, after the EEOC completes it’s investigation, if it is not able to persuade the parties to voluntarily resolve their dispute, then the employee is given the right to sue in court for resolution of the claim.
     Second, currently no court outside of the EEOC is required to follow this ruling. This ruling by the EEOC is considered “persuasive” authority on future courts that address the issue, but it is not “binding” on those courts – any given court may choose to follow the EEOC ruling or reject it. And different courts could rule different ways, as happened with the marriage equality decisions, resulting in splits of authority among states that could only be resolved by a US Supreme Court decision. There are already numerous Circuit Court rulings that reject the argument that Title VII covers sexual orientation, and those rulings ARE binding on all courts within those circuits unless and until those courts reverse those decisions or they are reversed by the Supreme Court. Also, because the EEOC is a politically-appointed body, a future Commission, potentially appointed by a Republican president, could reverse this decision and the underlying policy pronouncement.
     So, this ruling advances the cause, but there is still a long way to go before this ruling becomes the “law of the land.” Full protection for gay and lesbian employees will occur only by bringing legal challenges in courts to facilitate the opportunity for more and more courts to adopt the EEOC ruling, or by the passage of explicit federal and state legislation.
     Mary Meeks has practiced law in Central Florida for over 25 years and has the highest rating by the Martindale-Hubbell National Lawyer’s Registry.  She represents individuals, small businesses and Fortune 500 companies. Ms. Meeks is an accomplished civil trial lawyer who currently concentrates her practice in employment law, including cases involving discrimination based on race, color, national origin, age, disability, religion, gender, pregnancy, sexual orientation, gender identity, sexual harassment and retaliation.  For more information,

What is Harassment and When is it Illegal?

Workplace harassment is illegal if it is based on protected characteristics covered by federal, state, or local anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA), and the Americans with Disabilities Act of 1990 (ADA).  But how is harassment legally defined?

Offensive conduct in the workplace that is based on race, color, sex, age, religion, national origin, disability, or even genetic information, can be unlawful harassment if it is considered “severe” or “pervasive.”  Petty or isolated instances of harassment are not usually considered unlawful. However, if harassment creates an abusive or hostile work environment, then that harassment has crossed a line and is illegal. It is also illegal to harass or retaliate against an individual who has made a claim of unlawful harassment.

Name-calling, telling dirty jokes, making physical threats, or posting offensive pictures are just some forms of workplace harassment. The perpetrator of the harassment can be any supervisor, coworker or even a non-employee, and the victim can be anyone in the workplace who is offended, not just the direct victim who is targeted.

Another form of unlawful harassment is referred to as quid pro quo sexual harassment.  This is the classic scenario where employment, or terms and conditions of employment, are conditioned on an employee’s acquiescence to demands for sexual favors.

Employers can protect themselves from harassment charges by taking preventive measures in the workplace.  Clearly communicate what is, and is not, acceptable conduct; provide an effective grievance process for victims; provide harassment training to managers and employees; and create a workplace environment that encourages the reporting of unacceptable behavior.  Without taking specific measures to discourage, halt or address workplace harassment, an employer can be financially liable for it.

Know your rights as an employee, and know your responsibilities as an employer.