This post originally appeared on the Equality Texas Blog.
(Note: this post is about the
EEOC ruling on sexual orientation discrimination in employment. It does
not discuss employment discrimination based on gender identity or
expression or discrimination in public accommodations or housing. None
of which should be interpreted to mean that those kinds of
discrimination aren’t important or deserving of attention, only that
this is a narrow conversation about a specific administrative ruling)
The July 16th announcement
by the EEOC that it considers sexual orientation discrimination in
employment to violate federal law is one of the most important, and most
confusing, victories in LGBT history. Immediately the questions began:
does this mean an employer can be sued for discriminating against LGBT
employees? Do we still need state and local non-discrimination
protections? Do we still need a federal employment non-discrimination
What did the EEOC rule?
As you’ll recall from eighth-grade civics class, the government has
three branches: the legislative which makes laws, the executive that
enacts and enforces laws, and the judiciary that interprets laws. The
EEOC is part of the federal executive branch. The EEOC cannot make laws,
but, as part of its mission to enforce laws, it has to make decisions
about how it thinks laws should be enforced.
So how did the EEOC say they would interpret the law? The ruling says
that the EEOC will interpret employment discrimination based on sexual
orientation as a form of sex-based discrimination. The EEOC is saying
that discrimination based on sexual orientation is based on the
presumption of who someone “should” be romantically and/or sexually
attracted to, based on their presumed “sex.” Since the discrimination is
predicated on the sex of the person discriminated against – it’s sex
discrimination. The ruling applies only to employment that falls under
the EEOC’s purview. That includes: most federal employees; employees of
most federal contractors; and, private employers with more than 15
employees. Anyone who experiences employment discrimination based on
sexual orientation from an employer that doesn’t fall into those
categories is out of luck. In the case of private employers with more
than 15 employees, they will likely have to dedicate substantial
personal resources to pursue their claim, but more on that later.
We tend to think of the executive branch as the most powerful branch
of the federal government (the President is, after all, “the leader of
the free world”), and the executive is certainly the most nimble of the
three federal branches. By necessity it has a top-down decision making
structure and can quickly respond to new situations in a way that the
legislative, with its deliberative decision-making process, and the
judiciary, with its endless review and appeals process, cannot – but
that also means the executive rulings are the least permanent of the
three branches. As has been often noted “in America, we get the
opportunity to overthrow the government every four years.” The
Commissioners of the EEOC are appointed by the president and affirmed by
the US Senate. Any administrative interpretation in law is subject to
the whims of future administrations.
The EEOC ruling did not take place in a vacuum. At least ten federal
courts have ruled, in one form or another, that sexual orientation
discrimination constitutes a form of sex discrimination. It is those
rulings that the EEOC turned to in trying to decide how to interpret the
law. The ruling is a guess: “if we made this argument in a federal
court, would the judge agree?” Based on the precedents that already
exist the EEOC is guessing that yes, the court would agree – but whether
or not they are correct has yet to be tested.
Once EEOC interpretations wind up in court, a judge may tell the EEOC
that they are wrong. It is also possible that Congress might come along
later and pass a new law that supersedes the EEOC’s interpretation. So
whether it is by the actions of a later administration, the review of
the judiciary, or the law making power of the legislative, this ruling
by the EEOC lacks permanence.
What about State Government?
Texas Workforce Commission administers Texas’ employment
non-discrimination law and has not interpreted the law to include sexual
orientation or gender identity or expression.
State employees who experience employment discrimination may be able
to sue the state for employment discrimination, but when then-Attorney
General Abbott was sued for sexual orientation discrimination in
employment in 2009 he argued in court that no such protections existed.
The case was disposed of on other grounds, so the court never addressed
Abbott’s argument. It is likely that state employees do have such
protections, but it has never been tested in state court. Only the Texas
Commission on Environmental Quality, of all state agencies, has a
policy prohibiting employment discrimination based on sexual
orientation. The AG’s office used to have a policy prohibiting
employment discrimination based on sexual orientation, instituted by AG
Morales and continued by AG Cornyn, but Abbott revoked the policy.
Employment nondiscrimination bills have been filed in the Texas
legislature for over a decade, advancing furthest in 2013 when both the
Senate and House version received committee hearings, but no bill has
ever advanced past the hearing stage.
How do Municipal Non-Discrimination Ordinances differ from the EEOC process?
Finally, we come to local governments. Texas law does not allow
counties to pass employment protections countywide, only for their
employees, and a couple of counties have done so. Cities, on the other
hand, at least the larger ones, can (the rules are different for cities
with populations under 5,000). Dallas, Fort Worth, Austin, Houston, and
Plano have done so (although Houston’s is not currently being enforced,
and Plano’s is written poorly).
Well, “so what,” you say. Two out of three branches of the federal
government believe that most employment discrimination based on sexual
orientation is prohibited under the law, and that is not bad. Why bother
continuing to push for municipal protections?
Because the way that municipalities pursue employment protections is different from the way the EEOC does.
Broadly speaking, you can divide the law into two categories (and before
the legal pedants comment, yes I know – it is more complicated than
that): civil and criminal. Civil law is about how one person’s actions
affect another person. Criminal law is about how one person’s actions
affect the state (as represented by the government). When your actions
harm another person that person can, under certain circumstances, take
you to court to force you to either fix the problem or to pay them money
to make up for causing the problem. When that happens, it is the person
who is taking you to court who handles pays for all the lawyers and
court fees associated with the case. When your actions harm the state,
the government handles the costs associated with the case.
Federal employment protections are civil law. In Texas, municipal employment protections are criminal law.
So, if you experience employment discrimination based on a federally
protected characteristic (Age, Disability, Genetic Information, National
Origin, Pregnancy, Race, Color, Religion or Sex (which is inclusive of
both Sexual Orientation and Gender Expression under EEOC rules)) you can
file a complaint with the EEOC. In some cases, discrimination based on
active duty military deployment is also covered, but the EEOC does not
handle it. They will investigate that complaint unless the complaint is
against the government as an employer or a government contractor.
However, if the EEOC finds that your complaint has merit, and they
aren’t able to get your employer to agree to a settlement, in most cases
they will give you a letter giving you their blessing to sue your
employer. It will be up to you to find a lawyer to take the case and
figure out how to pay for them and the court costs associated. There are
some limited situations where the EEOC might represent you in a private
employment discrimination case. There are some wonderful legal aid
organizations out there that are stretched thin trying to help people
pursue these cases, but for most people facing employment discrimination
they will be stuck footing the bill for litigation that can take years
with the risk of never resulting in a positive court ruling.
How many people do you know with those kinds of resources? As the
corporate world has increasingly adopted internal non-discrimination
policies with internal processes for addressing discrimination, the
people most lacking in a process to address the discrimination they face
are people who don’t take home the kind of salaries needed to literally
make a federal case out of discrimination.
Protections that aren’t
accessible to the most
vulnerable among us
aren’t really protections
Compare that to municipal protections, which are criminal law. Every
city is a little different. Let us use Houston here as an example.
Because, well – I live there, and it’s awesome – but also because the
Houston Equal Rights Ordinance is up for a public vote in November and
the more that can be said about how it works the better. In Houston
complaints of employment discrimination based on protected attributes
(Sex, Race, Color, Ethnicity, National Origin, Age, Familial Status,
Marital Status, Military Status, Religion, Disability, Sexual
Orientation, Genetic Information, Gender Identity and pregnancy) are
made to the Office of Inspector General (OIG). They are instructed to
give the EEOC information about the complaint. The OIG investigates the
complaint and, if it is found to have merit, sets up a meeting with both
the person making the complaint and the employer to try to work things
out. If things cannot be worked out, the OIG refers the complaint to the
City Attorney, who can take the employer to municipal court. Where, if
they are found guilty, they can be fined up to $500 (it is the same
level of offense as failing to mow your lawn). All without costing the
person who experienced discrimination a dime.
Protections that aren’t accessible to the most vulnerable among us
are not really protections at all and municipal non-discrimination
protections provide a level of accessibility that federal protections
simply do not.
Now, there’s a downside to pursuing complaints through criminal law
rather than civil law. In that, since it is the state and not the
individual who is pursuing the case, the state and not the individual
receives the fine. While municipal protections are more accessible, they
are less likely to result in a case with a ruling to compensate a
discriminated individual in any way. This is why we also need federal
and state protections.
Oh yeah! State protections! How do those work?
covers employment discrimination based on Age Disability, National
Origin, Race, Color, Religion, Sex (not including sexual orientation or
gender expression or identity). Military Status is covered only for
state military services and whether a person left a workplace in
compliance with an evacuation order (like a hurricane). Complaints made
to the Texas Workforce Commission’s (TWC) Civil Rights Division are also
reported to the EEOC. The TWC will first seek mediation just like the
EEOC and municipal agencies. Then, if that fails, they further
investigate the case and refer it to a panel. If the panel agrees
discrimination likely took place, just like the EEOC, they will give you
their blessing to sue – but they usually won’t help you do it.
The EEOC ruling means that probably, under the right circumstances,
an employer can be sued for employment discrimination based on sexual
orientation. This is in no way means that local, state and federal laws
are no longer needed.
The EEOC’s ruling on sexual orientation employment discrimination
lacks sufficient permanence, and enough accessibility to be the final
word on non-discrimination protections. We must continue to pursue
protections at the state and municipal level and to defend the municipal
protections that already exist.