A little-known federal agency is on the verge of accomplishing what Congress and most state legislatures have failed to do for decades: make it clear that it’s not okay or legal in the US to discriminate against LGBTQ people in the workplace.
That body is the Equal Employment Opportunity Commission (EEOC). The federal agency is charged with taking up workplace discrimination complaints — whether it’s sexism, racism, Islamophobia, or, most recently, anti-LGBTQ bigotry.
The EEOC wasn’t always involved in LGBTQ issues. But over the past few years, it came around to a different interpretation of what qualifies as sex discrimination. Originally, bans on sex discrimination were taken to by and large protect women. Nowadays, the EEOC argues that LGBTQ people are protected by bans on sex discrimination, because discrimination against LGBTQ people is, fundamentally, rooted in expectations of how people of certain sexes should act — whether it’s whom they should love or what their gender identity should be based on the sex assigned to them at birth.
With that interpretation, the EEOC has been involved in thousands of cases over the past several years regarding anti-LGBTQ discrimination, netting millions in settlement agreements and helping change employers’ policies.
With the release of a report on workplace harassment, EEOC is going further, calling on employers and employees to take charge of stopping workplace harassment — against not just LGBTQ people but also women, racial and religious minorities, and people with disabilities.
At the front of all this work is Chai Feldblum, who was appointed by President Barack Obama to become the first openly lesbian commissioner at the EEOC. She co-authored the harassment report and has been a consistent voice in interpreting federal bans on sex discrimination to include LGBTQ people.
I spoke to Feldblum about her and the EEOC’s work on these issues. What follows is our conversation, edited for length and clarity.
The EEOC didn’t always take on anti-LGBTQ discrimination
German Lopez: How did the EEOC become involved in LGBTQ issues?
Chai Feldblum: Early on, in the late ’70s, we got charges from transgender people saying they had been discriminated against based on sex, because they transitioned from one sex to another. And we got charges from gay people, saying they had been discriminated against based on sex.
What the EEOC did, as many courts did, is carve out essentially an arbitrary exclusion from sex discrimination law and simply announce by fiat that these cases of sexual orientation and gender identity were not cases of sex discrimination. That continued to be the case for quite some time, even though the Supreme Court started interpreting sex discrimination in a way that could have easily protected transgender and LGB people.
What’s happened in more recent years [through the EEOC’s decisions for federal employees, which also apply to its work in the private sector] is that we, from my perspective, finally began to engage in legal correction. We removed that artificial exclusion from sex discrimination law. We said discrimination because someone has a gender identity different from the sex they were assigned at birth is a form of sex discrimination. Period. And starting in 2011 but really coming in 2015, we said that discrimination against someone because they are romantically involved with someone of the same sex, as opposed to opposite sex, is logically sex discrimination.
Courts are already taking up — and in some cases accepting — a view of the Civil Rights Act that protects LGBTQ people
GL: In terms of interpreting the Civil Rights Act, it makes perfect sense to me that expecting someone to marry someone of the opposite sex because of his sex is sex discrimination. But I’m curious how you think the courts are taking up this question and whether they agree.
CF: Three circuit courts of appeal now have this question in front of them. The Seventh Circuit has had it in front of them for over a year. The 11th Circuit has had it in front of them for several months. And the Second Circuit, where briefs were just filed for a case.
I think [the Second Circuit] is going to be the most important one to watch. It has the strongest amicus briefs, including one from members of Congress saying to not take the fact that they’re still pushing the Equality Act to mean that they don’t think LGBT people are covered under sex discrimination law, but instead that they just think it’s important to nail that down with certainty.
But in terms of how the courts will take it, I have been incredibly gratified by the number of district court judges who have adopted one of the theories in our 2015 ruling in regard to sexual orientation. Any one of these theories gets the same result — which is per se sexual orientation discrimination is sex discrimination.
Different judges have adopted different theories. For example, a district court in Alabama thought that our association argument made the most sense. So if a white man is dating a white woman and there are no problems, but then a white man is dating a black woman and gets fired for that, that’s clearly race discrimination. Just substitute race for sex and it’s clearly sex discrimination. The district court in Alabama liked that [argument].
A district court in California thought that our sex stereotyping argument was stronger, probably because that’s derived clearly from a Supreme Court case, Price Waterhouse v. Hopkins. That simply says it’s clearly a sex stereotype that men should be involved directly with people of the opposite sex. It’s discriminating against an LGB person, but it’s clearly because they don’t meet that sex stereotype. That was the district court in California applying a Title IX in an education case.
So I’m quite optimistic. That doesn’t mean we won’t get some courts that just say no. Personally, I’m hard-pressed to figure out what their legal analysis is going to be. All the courts that said sexual orientation isn’t covered for years never really engaged in much legal analysis; they just said Congress didn’t intend this. That’s not a very strong argument, especially because there’s another Supreme Court case written by Justice [Antonin] Scalia that even if Congress didn’t think about a natural consequence of the words they used, the consequence of those words is what governs unless Congress changes those words.
GL: In terms of anti-transgender discrimination, we’ve seen this absurd bathroom issue come up after North Carolina passed a law preventing trans people from using the bathroom for their gender identity in schools and government buildings. After the Obama administration sued the state, arguing that the law violates federal bans on sex discrimination, it put a whole new focus on how to interpret the Civil Rights Act.
But some people seem unaware that this legal battle over the Civil Rights Act has been going on for years and they’re only just now seeing it due to the bathroom issue. It seems like one upside, then, to this debate is that it could speed up the process of getting the issue of how to interpret the Civil Rights Act to the broader public and maybe the higher courts.
CF: HB 2 [North Carolina’s anti-LGBTQ law] is just a truly horrible and regressive law, but one of the things it has done is highlight for people that many of the federal agencies operate under the legal interpretation that sex discrimination includes discrimination against transgender people.
There are actually more courts [compared with cases regarding sexual orientation] that have allowed transgender people to bring cases based on sex discrimination law, even though people seem oblivious to it.
I think the fact that EEOC announced in a 2012 decision that without qualification gender identity discrimination is a form of sex discrimination was very important, because it applied across the country, so any person could bring a charge to EEOC. It did not matter if they lived in a state or city that didn’t have explicit protections for them; we would take their charge.
Over the course of three years, we had 53 transgender people that we have helped get relief. We’ve had 4,000 charges filed with us by LGBT people, [and] we’ve resolved about 2,000 of those, mostly giving people their authorization to go to court. We’ve helped 365 people get relief just through our administrative process. We’ve gotten $6.5 million. We’ve gotten hundreds of employers to change their policy.
So for folks who respond to the [Obama administration’s reaction] to HB 2 as new and novel and a legal overreach, they are stating something completely wrong as a matter of fact.
Cultural shifts have allowed this issue to be taken more seriously — and get an out lesbian like Feldblum appointed to the EEOC
GL: You are the first openly lesbian commissioner. How much of these changes do you think were influenced by you bringing a new perspective to EEOC?
CF: As I often say, often cultural logic has to change before legal logic can catch up. In reality, when the Title VII of the 1964 Civil Rights Act passed, that should logically have automatically covered LGBT people. The Employment Nondiscrimination Act — which is the bill that I helped draft in 1993 and has been pending for two decades in Congress until it was overtaken by the Equality Act — should have been completely unnecessary if the 1964 act had been correctly applied.
So I think the biggest change has been the cultural change that has allowed agencies and courts to realize that that really is an arbitrary exclusion. I think at the time [of the Civil Rights Act’s passage] LGBT people seemed so other, so different, that agencies and courts could not wrap their heads around the fact that a sex discrimination law logically prohibits discrimination based on sexual orientation and gender identity. So I think it’s largely cultural change.
Now, I think cultural change helped someone like me get confirmed by the Senate — which I do not think would have been easy 10 years ago, not only because I’m an out lesbian but because I’m an out lesbian that had been doing LGBT civil rights work for 20 years.
But when I came on the commission six years ago, I used to say that although my confirmation was contested because I was the first out lesbian commissioner, I think I’m having the most impact on the commission because I’m the first out statutory interpretation and administrative law professor to serve as a commissioner. I taught for 18 years at Georgetown Law School, [and] I taught classes on the rules of interpreting statutes. So I came [into] this job, and it’s my job to interpret the plain words of the law.
So absolutely the fact that I’m an out lesbian has, I can see, huge impact inside the agency. In terms of LGBT people inside the agency feeling safer and feeling more affirmed, I have seen that over and over again in ways that are actually surprising to me. And on issues dealing with disability, LGBT, and gender — issues that I have worked on in my career — obviously I brought that energy and focus to the commission, and that always helps.
But it’s hard to know whether something would have happened without a particular person, because by definition it’s hard to know. I do know that it’s something I have engaged in a very passionate way, but it’s passion derived from my commitment to the words of the law.
Yes, workplace harassment is real — and it might be more common than we know
GL: One of the things I hear consistently from readers is skepticism that there is discrimination and harassment in the workplace. Whenever I write an article about this, I always get those emails — asking, “Are people actually getting fired and harassed over this?” But you just put out this report that shows it really is happening — and probably more than we know. What do you think are the most striking findings in your report?
CF: Two things surprised me.
We had a lot of research data on the prevalence of sex-based harassment. By the way, that’s a very high prevalence: The most conservative estimate would be 25 percent of women experience what they call sexual harassment, and about 60 percent of women face harassment on just a gender basis — sexual harassment or harassment on a gender basis, what we call the put-downs rather than the come-ons.
We actually have at least some more decent research data on LGBT people, and that’s really because the constituency groups knew this was an issue for LGBT people and actually did those studies. The numbers are unacceptably high in terms of LGBT people that have faced harassment, including physical assault.
[Author note: A 2011 review of the research by the Williams Institute, a think tank focused on LGBTQ issues, found that between 2003 and 2007 about 9.2 percent of openly gay, lesbian, and bisexual people reportedly lost a job due to discrimination, and 38.2 percent were harassed at work, due to their sexual orientation.]
But what was most surprising is that we don’t have that same level of research data based on race, ethnicity, religion, or disability. We have studies on discrimination, but they didn’t pull out harassment. They pull it out for women, because that’s what they expect. They pull it out for LGBT people, because people in the community know that’s common. But they haven’t pulled it out for other communities, and I think that’s really unfortunate, because it is a distinct form of discrimination that makes it really horrific for some people to come to work.
The other surprise is that the millions of dollars employers have spent doing training has not been as effective as we would have hoped that training to be. That does not mean that employers should not do training. To the contrary, we found that having a policy and doing the training is key; otherwise, employers are in really big trouble. But it seems like employers mostly do training as a legal matter that will shield them from liability, and they’re not evaluating whether the training is truly helping. There was a dearth of empirical data.
Employers can do more to prevent discrimination and harassment, but they need to admit it’s happening first
GL: In terms of the interest of employers to get involved, is the argument that they either make changes or face the other costs, such as settlement agreements, possible lawsuits, and productivity loss, from allowing harassment in the workplace?
CF: Right. Although I think one of the contributions we make in this report is we highlight for employers that the cost to them for doing nothing is not just settlement and legal costs. I think that’s how employers have thought about it, and I think a number of them have said, “We’ll put a line item number in our budget in case we get sued.” And that’s it, because they just do what they think is a valid cost-benefit analysis, because they think there’s not much they can do to stop harassment or they actually think there’s not much harassment in their workplace.
One of the other shocking pieces of information was that 70 percent of people do not complain internally to a supervisor or a manager if they’re harassed. How do employers know if they have a problem? That’s why we say to them that they should do a climate survey, an anonymous survey to find out how people are feeling in their workplace.
GL: Do you think some employers just don’t see some forms of harassment as actually harassment?
CF: Yes, I think a lot of employers think the type of harassment that happens now of LGBT people is just not a big deal. And I think they think that way with harassment that happens against women, against Muslims, and against black people.
I think everyone knows that sexual assault is wrong. And that showing a noose to a black man and saying, “So do you want to hang from your family tree?” — which is what happened to a witness who spoke to us — is wrong. But [employers] don’t think that’s happening in their workplaces, which is probably wrong based on the number of charges we get.
But the more subtle comments and harassing behavior, that’s part of getting educated about what is harassment and what should not be acceptable conduct.
This is one of the promising types of training that we found: basic workplace civility training. That’s not based on any particular characteristic. It’s just saying, “This is what we think is civil and respectful.” And it’s a very skill-based training. If you get people to act in a civil and respectful way, maybe that’ll stop them from saying something rude and offensive about someone with a protected characteristic.
GL: Obviously, the explicit forms of racism — like if someone did what they did to that black witness — there’s really no question how you take care of that: Just fire them and tell them to never come back. But more with the subtle forms of harassment, the issue is even detecting those issues.
CF: Yes. It’s detecting those. That means empowering people in the workplace to let them know they don’t have to stand for comments and conduct that they find offensive, based on a protected characteristic. The people who are experiencing it know if it’s offensive. So it’s empowering them to come forward and empowering their co-workers to come forward.
Once people come forward with it, [employers] shouldn’t dismiss it [but] take it seriously, and engage in proportionate sanctions. You don’t fire the person the first time he makes a remark. You call him on it. If he continues to do that, making an anti-gay joke, then you suspend them for a week. And then if the person continues, you say, “You don’t fit in this workplace, and we’re firing you.” It could be the same conduct, but it has to be proportionate sanction. Otherwise it’s just not fair, and it won’t feel fair to people in the workplace.
GL: It wouldn’t actually teach people if you tell them something they might have been saying all their lives is suddenly wrong, and they lose their jobs over it, right?
CF: Correct. That’s why you don’t try to change their beliefs about whether it’s wrong. Training will not do that. So say, “We expect you to change your behavior if you expect to be employed by us.” That’s the key.