EEOC Says Anti-Gay Discrimination Is Illegal Sex Discrimination

The Equal Employment Opportunity Commission, the federal agency tasked with enforcing federal laws prohibiting job discrimination, issued an order yesterday with substantial impact on millions of people throughout the country.  In a case involving allegations of discrimination at the Federal Aviation Administration, the EEOC has concluded that Title VII’s prohibition against sex discrimination includes discrimination on the basis of sexual orientation.

In other words, the agency that enforces Title VII says that it’s illegal to discriminate against someone because they are gay, lesbian, or bisexual.  (It had already made a similar finding about gender identity.)

This makes perfect sense.  Federal courts, including the Supreme Court, have long held that employers may not rely upon sex-based considerations or take gender into account when making job-related decisions.  As the EEOC now notes:

Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. “Sexual orientation” as a concept cannot be defined or understood without reference to sex. …

Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee's sex. For example,  assume that an employer suspends a lesbian employee for displaying a photo of her female spouse on her desk, but does not suspend a male employee for displaying a photo of his female spouse on his desk.  The lesbian employee in that example can allege that her employer took an adverse action against her that the employer would not have taken had she been male.

The agency also notes that just as the law prohibits employers from discriminating against an employee because of the race of that person’s spouse, the same applies to the spouse’s sex.

This is not the first time that the EEOC has expanded the frontiers of justice and equality through an obvious but overdue interpretation of Title VII, which was passed in 1964.  For instance, today it’s common knowledge that sexual harassment in the workplace violates Title VII.  Yet, as anyone who lived through the 1960s (or watched Mad Men) can tell you, sexual harassment was quite common, Title VII notwithstanding.  It was not until 1980 that the EEOC issued guidelines prohibiting sexual harassment as a form of sex discrimination.  And it took until 1986 before the Supreme Court made that interpretation the law of the land in a case called Meritor Savings Bank, FSB v. Vinson.

Some courts have already addressed this issue and reached the opposite conclusion of the EEOC.  Dale Carpenter notes in the Volokh Conspiracy:

The EEOC’s view on sexual orientation, however, runs counter to the rulings of several circuit courts. These courts have reasoned that “sexual orientation” is not among the list of prohibited bases for employment action, that Congress did not intend to eliminate anti-gay discrimination when it enacted Title VII, and that Congress has repeatedly refused to add “sexual orientation” to employment protections.

The EEOC calls these earlier circuit court decisions “dated,” and some of them have been undermined by subsequent precedents in the same circuits recognizing that gender stereotyping, including gender stereotypes evidenced by anti-gay comments, is sex discrimination.

This week’s action from the EEOC certainly isn’t the end of the story.  Usually, if an agency interprets the law it’s charged with implementing, courts are required to give substantial deference to its interpretation, as long as it’s a reasonable way of reading the law.  But courts are not required to give that same level of deference to the EEOC’s interpretation of Title VII.  So while its recognition that sexual orientation discrimination is a manifestation of sex discrimination is a step forward, it could be undone by the courts (as well as by EEOC commissioners nominated by a future administration hostile to LGBT equality).  Indeed, we may see this issue ultimately decided by the Supreme Court.

PFAW Foundation

Peggy Young Will Get Her Day in Court

There's good news in the Supreme Court ruling in Peggy Young v. UPS, a case we discussed in our Term Preview and also blogged about after oral arguments. That's the case where UPS refused to give light duty to a pregnant employee who was under doctor's orders not to lift heavy packages, even though they gave light duty to other employees with similar lifting restrictions (those injured on the job, those who'd lost their DOT driving certification, and those with permanent disabilities).

The Court ruled in favor of Young in a five-Justice opinion written by Justice Breyer and joined by Justices Ginsburg, Sotomayor, Kagan, and Chief Justice Roberts. (Justice Alito concurred in the result but didn't join the majority opinion.) It's an important victory for Peggy Young individually and for women across the country, since it shuts down corporate efforts to make it much easier to discriminate against pregnant workers.

The Pregnancy Discrimination Act (PDA), passed in 1978, says that pregnancy discrimination is a form of illegal sex discrimination. Congress had to make this explicit after the Supreme Court ruled otherwise in a 1976 case. But that isn't all the PDA says. It also has a second provision: women affected by pregnancy "shall be treated the same for all employment-related purposes … as other persons not so affected but similar in their ability or inability to work."

The Court rejected UPS's extremely restrictive reading of the law. The corporation had argued that it hadn't discriminated on the basis of pregnancy because they were treating Young the same way they'd have treated a non-pregnant employee whose restrictions weren't caused by an on-the-job injury or other category. As Peggy Young learned the hard way when the lower courts ruled in favor of UPS without a trial, this made it much too easy for employers to force an employee to choose between her pregnancy and her job.

But the Supreme Court majority also rejected Young's reading of the law, where she would not have needed to show any intent to discriminate. Instead, the majority said that women in Young's situation – women asserting disparate treatment but without direct evidence of discriminatory intent – have to do more than show that they are being treated differently than workers with similar restrictions on their ability to work. Once they demonstrate the disparate treatment, the employer has a chance to offer up legitimate, non-discriminatory reasons for their policy ("saving money" doesn't count). Then it's up to the employee to convince a jury that those reasons are just a pretext. This is the same framework used in other types of Title VII disparate treatment cases, and it can create a hurdle that can be hard for victims of discrimination to overcome.

So this was not the complete victory Young sought, but it is still a victory, because it vacated the lower court and gives her a chance to make her case.

In a brief paragraph, the majority noted that the law has changed since Young's pregnancy, to the benefit of women like her. Specifically, Congress modified the Americans with Disabilities Act in 2008 to specify that impairments that limit your ability to lift, stand, or bend are disabilities under the law, thereby presenting legal options to women that were unavailable to Young. In addition, EEOC rules require employers to accommodate temporary lifting restrictions that originate off the job.

Not mentioned by the Court (appropriately enough, since it isn't the law) is a bill in Congress supported by a number of progressives – including our affiliate PFAW – called the Pregnant Workers Fairness Act. This would make clear that employers are required to make reasonable accommodations to pregnant employees.

The Court's ruling could have severely restricted women's rights under the Pregnancy Discrimination Act. Fortunately, the Court did not accept the misinterpretation of the law that would have benefited corporate interests at the expense of women everywhere.

PFAW Foundation

Pregnant Workers' Rights at the Supreme Court

Today, the Supreme Court heard oral arguments in Peggy Young v. UPS, a case that will affect just how much protection is afforded by a federal law protecting pregnant workers from job discrimination. This is one of the cases discussed in PFAW Foundation's preview for the current Supreme Court term.

Young, a pregnant UPS driver, was told by her doctor that she shouldn't lift more than 20 pounds while she was pregnant. When the company refused her request for temporary light duty, she was forced to choose between her job and her pregnancy. She chose the latter, and she had to take unpaid leave for the rest of her pregnancy, which also meant a temporary loss of her health insurance.

UPS changed its policy a few weeks ago, and it now accommodates women in Young's position.  But the company claims its original policy was legal and not in violation of the 1978 Pregnancy Discrimination Act. The PDA says that job discrimination on the basis of pregnancy is a form of illegal sex discrimination (a point that should have been obvious, except the Supreme Court had interpreted Title VII otherwise a couple of years earlier).

But it does more than that: a second clause also specifically mandates the pregnant women "shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work."

Since UPS gave light duty to certain other workers who are similar in their ability or inability to work – ones with an on-the-job injury, the loss of their driving certification, or a permanent disability – Young sued, saying that her employer's treatment of her violated the PDA. But UPS says its policy was legal because it was "pregnancy-blind:" They claim they were treating Young the same way they'd have treated a non-pregnant employee whose injury doesn't fit any of the above conditions.

The Washington Post reports that at this morning's oral arguments, the Court "tread somewhat gingerly through an hour of technical arguments."

Justices Elena Kagan and Ruth Bader Ginsburg dominated the questioning of the company's lawyer, Caitlin J. Halligan.

Kagan said that when Congress passed the Pregnancy Discrimination Act of 1978, it meant to abolish the "stereotype" of women as marginal workers. She said the act forbids policies that put all pregnant women "on one side of the line," and instead forces employers to prove their actions are not discriminatory.

Justice Ginsburg also had a retort to one of Justice Scalia's criticisms of Young's arguments:

Justice Antonin Scalia [said that Young] seemed to be seeking special recognition under the 1978 act, akin to "most-favored nation" status.

Ginsburg later countered that the UPS policy seemed to convey "least-favored nation" status.

The question for the Court is what Congress intended when it passed the Pregnancy Discrimination Act. Did it truly intend for it to be so easy for companies like UPS to force women to choose between their job and their pregnancy? Or did Congress intend to protect pregnant workers who need their employers to make some reasonable temporary accommodation so they don't have to quit their jobs, lose their health insurance, and deprive their families of much-needed income?

PFAW Foundation

President Obama Signs Executive Order Protecting LGBT Workers

Today President Obama signed an executive order protecting LGBT employees of federal contractors from workplace discrimination. In remarks this morning, the president said that our government “will become just a little bit fairer” today.

President Obama pointed out that many Americans go to work every day with the fear that they could lose their job because of who they are. It’s time to “address this injustice for every American,” he said, urging Congress to pass the Employment Non-Discrimination Act (ENDA). While today’s executive order expands protections to millions of LGBT people who work for federal contractors, we still lack a nationwide law to protect LGBT workers across the board. In many states, you can still be fired for being lesbian, gay, bisexual, or transgender.

Following the Obama administration’s announcement that an executive order was in the works, People For the American Way joined nearly 100 other organizations, including many faith groups, in a letter urging the president to reject a call for an additional religious exemption — which ultimately was not included. The letter noted:

Religious freedom is one of our most cherished values, a fundamental and defining feature of our national character. It guarantees us the freedom to hold any belief we choose and the right to act on our religious beliefs within certain limits. It does not, however, provide organizations the right to discriminate using taxpayer dollars. When a religiously affiliated organization makes the decision to request a taxpayer-funded contract with the federal government, it must play by the same rules as every other federal contractor. [emphasis added]

Jonathan Capehart from the Washington Post reports that in the past few weeks, there have been “extraordinary meetings” in the White House among LGBT and religious communities about both the necessity of protecting workers from discrimination and religious liberty. As Capehart writes, “The president’s action today shows the two are not mutually exclusive.”

PFAW

Our ENDA mission started with Senator Kennedy

UPDATE: ENDA got its start in 1994, but ENDA was not the first attempt in Congress to prohibit sexual orientation discrimination. Such protections were part of a broad civil rights bill introduced in 1974 that protected not only sexual orientation but also sex and marital status. Dubbed the Equality Act, its champions were Bella Abzug and Ed Koch.

Many who spoke this week in support of the Employment Non-Discrimination Act, including PFAW, invoked the name of a long-time ENDA champion, the late Ted Kennedy. So we reviewed the record and found his speech in support of ENDA's inaugural introduction in 1994.

And here's Senator Kennedy at the ENDA press conference in 1995:

Eighteen years later, four after his passing, we are still working to complete the mission that Senator Kennedy laid before the nation. We are keeping the pressure on all of Congress to pass ENDA.

The time is now!

PFAW

Where is Speaker Boehner hiding all the good bills like ENDA?

At a press conference yesterday, Senate Majority Leader Harry Reid (D-NV) posed a question that you might also be wondering about:

Where is the secret vault in the US House where Speaker Boehner is hiding all the good bills?

Leader Reid makes a good point. Why "lock away" the Employment Non-Discrimination Act when 68 percent of voters, including 56 percent of Republicans, believe that the rights of lesbian, gay, bisexual, and transgender employees should be protected by federal law? Why keep the House from voting on ENDA when 8 out of 10 voters already think such a law exists?

Is Speaker Boehner afraid it will pass?

 

Senate HELP Committee Chairman Tom Harkin (D-IA):

The message from all the senators was clear:

It's our message, too.

Speaker Boehner needs to decide whether he will cave to that kind of bigotry or stand with the vast majority of voters who support this legislation.

Here are a few other highlights from the final day of Senate debate on ENDA.

Again from Leader Reid:

Senator Al Franken (D-MN):

Senator Sherrod Brown (D-OH):

Senator Susan Collins (R-ME):

Senators who stood on the right side of history and voted for passage should be thanked. Senators who stood with anti-gay extremists should hear your disappointment. There are more instructions here and here, and you can always reach them by dialing 202-224-3121.

As we move on to the House, if you have not added your name already, sign our petition now to keep the pressure on all of Congress to pass ENDA.

The time is now!

PFAW

Scenes from today's ENDA debate - final votes tomorrow

During the Senate debate on the Employment Non-Discrimination Act today we've heard a lot about the bill's roots in the past, its relationship to American values, and how matching our laws with those values is long overdue when it comes to ENDA.

Senator Elizabeth Warren (D-MA), a progressive champion for many, quoted a predecessor in her seat and a long-time ENDA champion, the late Ted Kennedy:

The promise of America will never be fulfilled as long as justice is denied to even one among us.

She then offered her own words on how far we've come:

It has taken us far too long to arrive at this day, but we are here now, and we are not going back.

Senator Dianne Feinstein (D-CA), a contemporary of the late Harvey Milk, recalled her time in San Francisco city and county government, during which a non-discrimination ordinance was passed.

I watched the legislation implemented over the last four decades. It has protected people's jobs and livelihoods from unfair treatment. It has been a good thing for people and for business.

Senator Christopher Coons (D-DE) spoke passionately about how ENDA represents American values:

Protecting Americans from discrimination is part of America's shared values. And it needs to be part of our laws as well . . . It's not okay.

The final Senate votes on ENDA will take place tomorrow, starting at 11:45 am EST. Now is your last chance to call your senators. There are more instructions here and here, and you can always reach both of them by dialing 202-224-3121. Don’t forget to sign our petition.

The time is now – say yes to common sense and no to anti-gay extremistspass ENDA!

PFAW

Scenes from the floor on the first day of ENDA debate

Yesterday marked the first day of Senate debate on the Employment Non-Discrimination Act, and ENDA survived its first major hurdle – a strongly bipartisan 61-30 cloture vote to end a Republican filibuster on proceeding to consideration of the bill.

Here are a few of the floor speeches given yesterday in support of ENDA.

Senator Tammy Baldwin (D-WI), the first openly gay US senator:

Senator Mark Kirk (R-IL), one of the lead Republicans on the bill in his first floor speech since suffering a stroke in January 2012:

Senate HELP Committee Chairman Tom Harkin (D-IA), summing up this historic moment:

From letters to alerts and more, the entire PFAW family has been working on ENDA. We still need your help. Please keep calling the Senate as this week's debate continues. There are more instructions here and here, and you can always reach both of your senators by dialing 202-224-3121. Don’t forget to sign our petition.

The time is now – say yes to common sense and no to anti-gay extremistspass ENDA!

PFAW