EEOC Looks at Expanding Antidiscrimination Law

While the Republican-controlled Congress is unlikely to act on the Employment Non-Discrimination Act, nationwide antidiscrimination protections for LGBT people may come through an interpretation of existing federal law.

The U.S. Equal Employment Opportunity Commission issued a memo this month, obtained by BuzzFeed, directing field offices to take a special interest in LGBT discrimination claims that could advance the interpretation that the Civil Rights Act of 1964's Title VII prohibition on sex discrimination also covers discrimination based on sexual orientation and gender identity.

The EEOC has already made this interpretation in a limited manner. It has held that discrimination based on gender identity is sex discrimination, and that sexual orientation discrimination is covered when it's based on gender stereotypes. The February 3 memo signifies an "interest in strong enforcement of this interpretation," BuzzFeed reports.

EEOC officials declined to discuss the memo on the record, but it notes that the agency, which enforces the Civil Rights Act and investigates discrimination complaints, is particularly interested in "claims related to discriminatory policies; insurance issues including benefits for same-sex couples or transgender individuals; access to facilities based on gender identity."

EEOC decisions in discrimination complaints "are binding for federal employees' claims and are taken into account by courts considering similar claims" brought in lawsuits against private companies, BuzzFeed explains.

Recently, for instance, the EEOC found "probable cause" of discrimination in a claim Gay and Lesbian Advocates and Defenders brought on behalf of Jacqueline Cote, a Wal-Mart employee, and her wife, Diana Smithson. "Cote was denied health insurance coverage for Smithson, who has been diagnosed with ovarian cancer," BuzzFeed notes. GLAD will try to resolve the complaint through the EEOC, but is prepared to go to court if that does not work out.

LGBT activists were encouraged by the memo. "This memo shows that the EEOC's doors are fully open to accepting and investigating complaints from gay, lesbian, and bisexual Americans who suffer workplace harassment or unjust firings simply because of the sex of the person they love," Tico Almeida of Freedom to Work told BuzzFeed.

GLAD executive director Janson Wu emphasized that congressional action is still needed, however. "People are being harmed today because of both a misinterpretation of [Title VII] law as well as congressional inaction. ... We're not going wait while more people are being harmed by employment discrimination," Wu told BuzzFeed. Expansion of the interpretation of Title VII, he added, "does not obviate the need for Congress to pass explicit protections."