Gay Americans can now get married in the morning and then, in the afternoon, just for being gay, their employers can fire them. Is doing so legal? Up until last week, the answer was yes for Americans living in the 28 states without explicit bans on workplace sexual-orientation discrimination. But an important ruling from the Equal Employment Opportunity Commission (EEOC) means that courts in those states are now more likely to say that such discrimination is illegal, and that gay Americans are already protected from such discrimination under existing law.
Of course, this is all a bit iffy. The EEOC’s rulings dictate the rights of most federal workers, but are non-binding in the private sector, where they’re interpreted as recommendations. Still, courts and human-resources professionals look to the agency for guidance on matters of employment discrimination. "When the EEOC says something, that really matters,” says Sam Bagenstos, a professor at the University of Michigan’s law school.
Even so, advocates would like to lock down the illegality of sexual-orientation discrimination, and there are two parallel, non-competing paths for them to pursue: litigation and legislation. The first would rely on lawsuits to wend their way through the courts, with the hope that a legal consensus would slowly coalesce. This is where Baldwin v. Foxx, the unexpectedly timed EEOC ruling last week, comes in. It gives courts a trustworthy guideline to look to, and is thus a formal step toward establishing comprehensive nationwide protections for LGBT workers, as opposed to leaving their fates up to a state-by-state legal patchwork.
Essentially, the ruling in Baldwin v. Foxx said that it was illegal for a federal air traffic controller to be passed over for a permanent job because of his sexual orientation. The legal explanation was that discrimination based on sexual orientation is no different from discrimination based on sex—and workplace discrimination based on sex is banned by the Civil Rights Act of 1964. The reasoning, in short, is that if a man marries a man and gets fired as a result, the outcome would’ve been different than if he were a woman (who likely wouldn’t have been fired for marrying a man). “It's based on a kind of stereotype about the kinds of romantic partners or long-term partners people ought to have based on their sex,” says Bagenstos.
In the past decade, some lawyers have already been using the same legal logic as the one in Baldwin v. Foxx to argue that sexual-orientation discrimination is illegal, but this ruling might strengthen that argument in judges’ eyes and will probably encourage more lawyers to make the same case. As this process accelerates, one of two things will happen. Either certain lower courts will disagree with the EEOC’s ruling, in which case a series of appeals could eventually bump the case up to the Supreme Court, which would have the opportunity to cement or reject anti-discrimination rules. Or, most of the lower courts will agree with each other and the EEOC, making it less likely the Supreme Court would review their consensus.
Bagenstos considers the ruling “a big deal,” but isn’t shocked that it hasn’t been on the front page of every newspaper. “I guess it's not that much of a surprise that a somewhat obscure decision by an independent agency in the middle of the summer doesn't get a lot of press,” he says. Suzanne Goldberg, a professor at Columbia Law School, observes, “There is often not a lot of publicity for agency determinations even when those determinations are profoundly important.”
It’s important, yes, but many advocates are aware that the litigation approach can unfold slowly. Some are also afraid of what the Supreme Court might decide, if a case were to get there. Which leads to path number two: a federal civil-rights law that bans workplace discrimination in every state. Bills with this intention have been submitted to Congress practically every year since 1973, and none have passed. Recently, some advocates have set their sights on more expansive legislation, which would encompass discrimination in other realms (such as being denied a mortgage or getting evicted) and against other groups (such as transgender people).
If this issue has at least been on Congress’s radar since the 1970s, why is it that the EEOC only just now extended the applicability of a 51-year-old law to discrimination based on sexual orientation? One reason is that precedents set in the ‘70s and ‘80s indicated that the Civil Rights Act of 1964 didn’t go that far in its protections. A number of things have changed since then. “Nondiscrimination based on sexual orientation has become such a widely accepted principle, particularly in the workplace, and I think that has opened courts and judges up to hearing arguments that are rooted in legal logic,” says Bagenstos. Also, the act’s applicability was elucidated by an unlikely LGBT ally: Antonin Scalia. In 1998, Scalia wrote on behalf of a unanimous Court that the act covered same-sex sexual harassment, even if the law didn’t explicitly say so. “Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils,” he wrote.
The EEOC’s ruling last week may seem to be riding the momentum of last month’s same-sex-marriage ruling (which Scalia dissented from) but it had come to be expected by legal experts over the course of President Obama’s term, as the EEOC started signaling that sexual-orientation discrimination qualifies as sex discrimination. Still, the ruling’s precise timing was unpredictable, and when the EEOC put out its ruling a week ago, there were no flag-waving, face-painted gay-rights advocates waiting on its steps, no photographers on hand. Instead, it was just a government agency quietly announcing its official stance on workplace discrimination in PDF form. But no lack of fanfare can diminish its importance.
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