When you’ve been blogging as long as Jon Hyman (of Ohio Employer’s Law Blog) and I have, your minds seem to work in a similar fashion.
For a few days, I’ve been working on a draft of a blog post about the EEOC’s goal of expanding Title VII’s reach to include sexual orientation discrimination claims. Of course, before I could click “publish”, yesterday Jon published one that says almost the same thing.
In a thorough 27-page amicus brief filed last week, the Agency details why it believes that Title VII already prohibits sexual-orientation discrimination as unlawful sex discrimination.
The brief is not a surprise. Indeed, this was discussed at the ABA Labor & Employment Law Annual Conference last fall in Philadelphia. Nevertheless, the EEOC’s brief is clear about where it is trying to take the law.
Sexual orientation discrimination claims necessarily involve illegal sex stereotyping, illegal gender-based associational discrimination, and impermissible consideration of a plaintiff’s sex, placing them squarely within Title VII’s prohibition against discrimination on the basis of sex.
What IS different though about Ohio and Connecticut is that Connecticut has long since prohibited discrimination on the basis of sexual orientation. Indeed, in the last fiscal year, 51 employment discrimination complaints on the basis of such a protected class were filed at the CHRO.
The law in Connecticut works well and is an important and vital part of the protections in the state.
And this is where I start to differ with Jon. For years, I have been asking for the passage of ENDA – a bill that would explicitly ban discrimination the basis of sexual orientation at the federal level. This would solve the issue clearly and easily.
But because Congress can’t seem to get anything done, that bill hasn’t gone very far.
So instead, the EEOC has been trying to expand the reach of Title VII. Count me among the people that is a bit skeptical with the efforts. The oft-used phrase “trying to fit a square peg into a round hole” comes to mind.
Why? Because for many years it was understood that the protections offered by Title VII on the basis of sexual orientation were limited. Same-sex harassment, as the Oncale case was known, was the best example of where the protections of Title VII cover those who are gay from harassment. But this means that the EEOC’s efforts are going to be at the whim of the courts.
This is not necessarily new. In fact, back in 2012, the EEOC took the position that Title VII covered sexual orientation discrimination.
Those who are gay, lesbian, bisexual or transgender frankly deserve better, in my view. They deserve their own federal law giving them the workplace protections that Connecticut has given.
Until then, the battles over the scope of Title VII will continue.