EEOC Legislates New Federal Ban on Discrimination Based on Sexual Orientation

When Congress declines to pass a law that would expand an agency’s powers, the agency will sometimes respond by making up the law on its own. The Equal Employment Opportunity Commission recently did this, by adding a new protected class to federal employment laws, at the expense of America’s employers.

Congress has never enacted a ban on private-sector sexual orientation discrimination, so the subject is governed largely by state or local law (most, but far from all, of America’s workplaces are covered by a state law or municipal ordinance banning sexual orientation discrimination).

To the EEOC’s displeasure, a bill to prohibit sexual orientation discrimination at the federal level, the Employment Non-Discrimination Act, has repeatedly failed to pass Congress, in the face of questions about whether it is really needed (virtually all Fortune 500 companies have banned sexual orientation discrimination for years) or whether banning private-sector sexual orientation discrimination would cause problems for certain businesses (such as potentially triggering “hostile work environment” lawsuits against religious broadcasters, publications, or bookstores over workplace expression).

So, the EEOC has decided to legislate a ban on sexual orientation discrimination on its own, declaring that all sexual orientation discrimination is a form of sex discrimination. “Allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex,” the commission concluded in a decision dated July 15.

Discrimination on the basis of sex is already banned by a 1964 law—Title VII of the Civil Rights Act—but while that law lists several types of discrimination that are forbidden—race, religion, sex, and national origin—it does not list sexual orientation. The EEOC concedes as much when it admitted that sexual orientation “is not” “explicitly listed in Title VII as a prohibited basis for employment actions.” Yet, in spite of this, the EEOC declares in its ruling that Title VII forbids sexual orientation discrimination, and that “allegations of discrimination on the basis of sexual orientation state a claim of discrimination on the basis of sex.”

But as legal commentator (and outspoken gay-marriage supporter) Walter Olson notes, however, the EEOC’s ruling contradicts a long line of federal appeals court precedent, and it is those courts that will hear lawsuits against private employers (the EEOC’s July 15 ruling was against a federal agency, not a private employer):

It’s not the Commission that gets to have the final say on that, however; it’s the federal courts. And there is a fair trail of precedent, including circuit court authority, rejecting the proposition that sex discrimination in this setting can be stretched to cover sexual orientation discrimination. Against that . . . judges will be asked to defer to the EEOC in its (new) expert opinion.

But it’s not easy to think of an agency to whose views federal courts nowadays give less deference than the EEOC. As I’ve noted in a series of posts, judges appointed by Presidents of both political parties have lately made a habit of smacking down the commission’s positions, often in cases where it has tried to get away with a stretchy interpretation of existing law. See, for example, the Fourth Circuit’s rebuke of “pervasive errors and utterly unreliable analysis” in EEOC expert testimony, Justice Stephen Breyer’s scathing majority opinion in Young v. U.P.S. on the shortcomings of the EEOC’s legal stance (in a case the plaintiff won), or these stinging defeats dealt out to the commission in three other cases.

As Reason magazine’s Scott Shackford, a gay journalist, notes, there is nothing in the language or history of the 1964 Civil Rights Act “to indicate that sexual orientation” is covered, and the EEOC’s interpretation is “simply beyond” Congress’s intent.  Moreover, the cases the EEOC erroneously cites as supporting its position have “nothing to do with actual sexual orientation,” and in citing them, the EEOC wrongly conflates “gender expression” and “sexual orientation.”

The EEOC’s ruling would presumably come as a surprise to the Supreme Court, which has never equated sexual orientation discrimination with sex discrimination. The Supreme Court’s recent gay marriage decision, Obergefell v. Hodges, did not do so, and it would not have been a lengthy, closely divided 5-to-4 decision if the Justices thought anti-gay discrimination in any way constituted sex discrimination. (The Constitution’s equal protection clause has been interpreted for many years as presumptively banning sex discrimination by government officials; the Constitution only applies to the government, and does not regulate private employers.)

No justice hinted that excluding gays from marriage constitutes sex discrimination, even though the argument that such bans literally constitute sex discrimination was before the Court, was broached at oral argument, and was far less fanciful than the EEOC’s insistence that all discrimination based on sexual orientation constitutes sex discrimination.

If the justices had thought it constitutes sex discrimination, their decision would have been very short, and decided by at least a 6-to-3 margin, rather than a 5-to-4 margin, with Chief Justice Roberts voting to strike down gay marriage bans rather than dissenting.

Sex discrimination is presumptively unconstitutional in the eyes of even most conservative justices, as the Supreme Court made clear in its 7-to-1 decision in United States v. Virginia (1996), which also emphasized that even seemingly-reasonable sex-based classifications are generally unconstitutional, because the “burden of justification is demanding and it rests entirely on the State.”

But sexual orientation discrimination has historically not been subjected to such exacting judicial scrutiny under the Constitution’s equal protection clause (which is why, for example, the ban on gays in the military persisted until the federal government voluntarily repealed it—although civilian government employees successfully sued in some cases), and anti-gay discrimination has been struck down as unconstitutional only when a challenger convinces judges that the discrimination was irrational.

That is why the Supreme Court had to rely not just on equal protection but also, in addition, fundamental rights and substantive due process to strike down gay marriage bans—and why nearly half of the Court’s justices dissented and concluded that banning gay marriage is permissible under the Constitution. Chief Justice Roberts’ dissent conceded that “the policy arguments for extending marriage to same-sex couples may be compelling” and are based on “strong arguments rooted in social policy and considerations of fairness.” But he still concluded that gay marriage bans are constitutional because those challenging those bans failed to meet their burden of showing them to be “irrational,” as opposed to merely imprudent.  

Chief Justice Roberts could not logically have reached that conclusion after arguing that gay marriage might be a good idea, had he believed that gay marriage bans constituted sex discrimination. That’s because sex discrimination, unlike anti-gay discrimination, has to be more than just rational to be constitutional, and must satisfy a “demanding” “burden of justification,” showing that the sex discrimination is necessary to achieve important government interests, which would be hard to do if it was contradicted by “strong arguments” or “compelling” policy reasons.

The EEOC’s ruling must also come as a surprise to Congress, which took care over the years to exclude sexual orientation from federal employment laws (for example, Section 512 of the Americans with Disabilities Act excludes from coverage “homosexuality and bisexuality” along with various sexual dispositions or conditions).

Even if the courts were to overturn past constitutional precedents and equate sex discrimination with sexual orientation discrimination under the Constitution’s equal protection clause, it would be a mistake for them to overturn the many existing precedents refusing to do so under statutes like Title VII of the Civil Rights Act, which governs private employers. Stare decisis applies with greater force to a statute like Title VII than to the Constitution, whose misinterpretation can only be fixed by the courts, not the legislature.

While stare decisis is not an inexorable command in interpreting the Constitution, it applies with heightened force in the realm of statutory construction, as the Supreme Court emphasized in Patterson v. McLean Credit Union (1989). Congress cannot rewrite the Constitution, and is subject to it, rather than being its master. But Congress does enact statutes, and can override court rulings it views as misinterpreting them. And it has manifested its desire not to include sexual orientation as a protected class by leaving intact a steady stream of past court rulings excluding sexual orientation from the reach of Title VII (rulings that rejected the very reasoning on which the EEOC’s July 15 decision was based), and by excluding sexual orientation as a protected characteristic under other laws.  

As the Supreme Court explained in the Patterson decision, in refusing to overturn an interpretation of a civil rights statute that had been questioned by many but left intact by Congress, “considerations of stare decisis have special force in the area of statutory interpretation, for here, ‘unlike in the context of constitutional interpretation, the legislative power is implicated, and Congress remains free to alter what we have done.’”

And courts have continued to reject lawsuits alleging that sexual orientation discrimination or harassment constitute sex discrimination, even in recent years. Recent such rulings include Simonton v. Runyon, Higgins v. New Balance, Wolfe v. Fayetteville School District, and Schroeder v. Hamilton School District. The EEOC should have followed these court rulings, rather than flouting them.