Federal law contains provisions forbidding discrimination based on several classifications: race, sex, veteran status, etc. However, no federal law explicitly prohibits discrimination based on sexual orientation or transgender status. As a result, many employers in states which do not have their own legislation barring discrimination based on sexual orientation or transgender status have assumed that no laws prohibited such discrimination.
The Equal Employment Opportunity Commission (“EEOC”) has now called this assumption into question, by bringing several lawsuits treating discrimination based on sexual orientation or transgender status as a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. This issue is a focus of the EEOC’s Strategic Enforcement Plan for 2013-2016.
The issue has recently come into focus due to the vast expansion since 2012 in the number of jurisdictions that recognize same-sex marriage. At the end of 2012, only 9 states recognized same-sex marriage. On June 26, 2013, the Supreme Court struck down the Defense of Marriage Act, which had precluded federal recognition of same-sex marriages. As of May 12, 2015 the number of states that recognize same-sex marriage is 38. The Supreme Court has recently heard oral arguments in a case involving the issue of whether any state can continue its ban on same-sex marriage, and is expected to issue a decision in June.
Some employers have responded to these developments by attempting to exclude the same-sex spouses of their employees from employee benefit programs. However, the EEOC takes the position that:
[I]t is illegal for an employer to deny employment opportunities or permit harassment because:
- a woman does not dress or talk in a feminine manner.
- a man dresses in an effeminate manner or enjoys a pastime (like crocheting) that is associated with women.
- a female employee dates women instead of men.
- a male employee plans to marry a man.
- an employee transitions from female to male or male to female.
The EEOC’s position, if upheld by the courts, would apply to most private employers (both profit-making and nonprofit) and to governmental entities. However, it would not apply to churches, which are exempt from Title VII of the Civil Rights Act of 1964.