clock menu more-arrow no yes

The next big legal fight for LGBTQ rights may have just begun

With same-sex marriage now legal in the US, the next big legal fight for LGBTQ rights may finally be underway.

On Tuesday, the Equal Employment Opportunity Commission (EEOC) filed two lawsuits in federal court alleging that two companies engaged in anti-gay discrimination, in violation of federal civil rights law.

Chris Geidner reported for BuzzFeed:

In Maryland, the EEOC sued Pallet Companies, alleging that the company discriminated against Yolanda Boone "by subjecting her to harassment" because she is a lesbian, resulting in her being fired, and by retaliating against Boone when she complained about the harassment.

In Pennsylvania, the EEOC sued Scott Medical Health Center, alleging that the company "subjected [Dale] Baxley to a sexually hostile work environment" by Baxley's manager. The EEOC alleges that Baxley, who is gay, was effectively fired by the company — a legal term called "constructive discharge" — by failing to address the "intolerable working conditions."

Alone, these two lawsuits may not appear remarkable. But they're part of EEOC's quiet but growing push to formally redefine the full protections provided by the Civil Rights Act of 1964 — and officially ban workplace discrimination against LGBTQ people nationwide.

Most states don't explicitly ban anti-LGBTQ discrimination in the workplace

Why is this important? Under current federal law, LGBTQ workers aren't explicitly protected from workplace discrimination based on sexual orientation or gender identity. Some states do provide such anti-discrimination protections, but most do not. So in most of America, it's seen as legal for an employer to fire workers just because they're gay, lesbian, bisexual, or transgender.

How a 50-year-old law may protect LGBTQ workers

The LGBTQ and US flags. Gabriel Bouys/AFP via Getty Images

Advocates argue that the EEOC and other federal agencies should take a different view — one that does grant federal civil rights protections to LGBTQ people.

From their view, the Civil Rights Act of 1964 and the Fair Housing Act should protect LGBTQ people from discrimination in the workplace and housing, as they do for race, color, national origin, religion, and sex.

It's the last protection — sex — that's relevant here: Advocates say that protections against sex-based discrimination also apply to sexual orientation and gender identity, since discrimination against LGBTQ people is, fundamentally, rooted in expectations of what people of certain sexes should be like. (One caveat: These protections would not apply to public accommodations, since sex isn't covered in federal laws for that area.)

"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 American Civil Liberties Union's Joshua Block previously told me. "That applies to lesbians and gay men, too."

The EEOC has embraced this idea. In 2012, it decided that the Civil Rights Act protects workers from discrimination based on gender identity. Then in 2015, it expanded the protections to sexual orientation.

But since EEOC is seen as an expert advisory by courts, the EEOC's rulings don't actually mean all LGBTQ workers are protected in the US. So it will take formal court challenges to get courts — particularly the Supreme Court, if a case ends up there on appeal — to consider whether the EEOC's interpretation is correct and potentially redefine federal law.

If the courts rule in the EEOC's favor, LGBTQ Americans could gain huge legal protections against workplace discrimination. And it could all start with the two court cases filed in Maryland and Pennsylvania on Tuesday.

Sign up for the newsletter Sign up for The Weeds

Get our essential policy newsletter delivered Fridays.