More than five decades after the passage of the Civil Rights Act of 1964, a federal agency has concluded that the law protects LGBTQ people from discrimination in the workplace.
In a new decision, the Equal Employment Opportunity Commission ruled that "allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex." EEOC previously ruled that the Civil Rights Act's prohibitions on sex discrimination protect workers from discrimination based on gender identity.
There's one catch: EEOC rulings aren't the law of the land. Federal employees are directly covered by EEOC decisions, so they're fully protected. But for other employees around the country, courts typically consider EEOC rulings as expert advisories and nothing more.
The EEOC and Supreme Court, for example, once disagreed on whether federal law indefinitely prohibits discriminatory pay practices against women. It took congressional action — the Lilly Ledbetter Fair Pay Act — to grant stronger pay protections for women.
So it could take congressional action, such as the passage of the Employment Nondiscrimination Act (ENDA), or a Supreme Court decision to ensure US courts follow the EEOC's interpretation.
The uncertainty is why LGBTQ advocates are pushing for explicit protections at the federal level and in the 31 states that don't shield LGBTQ people from workplace discrimination. Still, advocates have long argued that the Civil Rights Act should apply to LGBTQ workers.
How the Civil Rights Act could protect LGBTQ workers
The Civil Rights Act prohibits various forms of discrimination on the basis of race, color, religion, sex, or national origin, in part allowing those who have been discriminated against in the workplace to take legal action against their employers. The question for LGBTQ advocates is whether Title VII of the Civil Rights Act, which in part prohibits workplace discrimination on the basis of sex, also applies to gay, lesbian, bisexual, transgender, and genderqueer workers.
The Supreme Court in 1989 decided that Title VII protects workers from sex stereotyping. Advocates argue those protections can extend to any social stereotype or expectation based on sex that LGBTQ people may defy in the workplace.
"It's pretty uncontroversial that discriminating against a man that acts too effeminate or a woman that acts too masculine is a form of sex discrimination," the ACLU's Joshua Block previously said. "That applies to lesbians and gay men, too."
But the federal government and most states don't have explicit nondiscrimination protections for LGBTQ people. Currently, 19 states protect people against workplace discrimination based on sexual orientation and gender identity, and three more protect only against discrimination based on sexual orientation. So without federal protections, employers can legally fire workers solely because they're gay, lesbian, bisexual, transgender, or genderqueer.
As a result, LGBTQ advocates would like more explicit protections against discrimination based on sexual orientation and gender identity written into state and federal laws.
"We think the EEOC's position is absolutely the correct legal position, and it should be very persuasive to any court, including the Supreme Court," Block said. "But when you're talking about basic human rights … you want explicit protections in the law."