(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 law?
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.
The 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.
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
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.
Texas law 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.