Title VII and the EEOC
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees and job-applicants based on an individual’s race, color, religion, sex, and national origin. The federal law is enforced by the US Equal Employment Opportunity Commission (EEOC), which investigates charges of discrimination, determines wrongdoing, and has the authority to either settle charges with offending businesses or pursue litigation.
While Title VII doesn’t explicitly prohibit discrimination based on sexual orientation or gender identity, the EEOC considers such discrimination an extension of the provision against sex-discrimination, and therefore finds discrimination against LGBT employees to be illegal under federal law. The organization formalized their opinion in a 2015 ruling by a 3-2 vote, and their decision was ratified by President Obama and the Justice Department at the time.
Title VII and the federal courts
The EEOC’s ruling is not legally binding to the courts, but as a general practice most courts defer to agency policy when considering applicable cases. While the Supreme Court has yet to issue a direct ruling on the matter, there are a number of federal court decisions that rule in favor of Title VII’s provision on sex-discrimination extending to sexual orientation and gender identity.
Title VII and the Department of Justice
In a surprising move, the DOJ under President Trump has reversed their position on the matter. In July of 2017, the DOJ submitted a brief as a friend of the court to a federal case of LGBT-discrimination in New York. In the brief, the DOJ asserts that because Title VII doesn’t explicitly address sexual orientation or gender identity, neither is afforded protection under the federal law. The DOJ fails to take a stance on whether such discrimination is acceptable, instead deferring the matter to Congress by encouraging concerned legislators to formally amend the law to include provisions protecting the rights of LGBT employees.
Given that understanding, it’s safe to say that the EEOC whole-heartedly enforces against cases of discrimination against LGBT employees, but how that non-binding policy translates to the courts remains to be seen. Barring legislative action, the DOJ may continue to attempt to influence court decisions against the favor of LGBT employees.
General examples of LGBT-related sex discrimination cases
Following are a handful of example situations that the EEOC deems to be unlawful sex-discrimination:
- Choosing to not hire an applicant because she is transgender
- Terminating an employee because they made a gender transition, or because they are considering a gender transition
- Denying an employee access to the restroom that matches their gender identity
- Harassing an employee who has made a gender transition, such as by refusing to honor the chosen name and/or gender pronoun which the employee has communicated to management and coworkers
- Denying an employee a promotion because they are gay
- Discriminating in terms, conditions, or privileges of employment, such as by denying benefits to a female employee’s legally-wed female spouse, or by offering a lower compensation package because an employee is gay
- Harassing an employee because he is gay, including the use of derogatory terms, sexually-oriented comments, or disparaging remarks
- Discriminating against or harassing an employee based on sexual orientation or gender identity combined with another protected form of discrimination, such as race, color, religion, national origin, age (over 40), disability, or genetic information
How to file a charge of employment discrimination
To file a complaint against an employer for employment discrimination (not just for sex-discrimination—for all types of discrimination protected by federal law), you’ll need to file a charge of discrimination with the EEOC. A charge of discrimination is a signed statement which asserts that an organization engaged in employment discrimination, and requests the EEOC to take remedial action. Note that in most cases, you can’t file a civil lawsuit against an employer until you have filed a charge of discrimination with the EEOC.
Generally speaking, an employee has 180 calendar days to file a charge of discrimination. Some states have laws that can extend the statute of limitations to 300 calendar days, but it’s best to submit your claim within 180 days to avoid a potential dismissal based on time elapsed since the incident.
You can initiate the process by submitting an inquiry here, on the EEOC’s website. After submitting the inquiry, you will be asked to schedule an interview with an agent at the nearest EEOC office. For the interview, bring as much evidence as possible, including termination notices, performance records, recorded communication, etc. You are also welcome to bring someone with you to the interview for support, as this is understandably an emotionally challenging process.
If the agent determines that you have a case, they will explain your options, and you’ll get to choose how you’d like to proceed. You’re under no obligation to file the charge at this point. If you decide you’d like to proceed with the case, the agent will prepare a formal charge, which you can sign and date online. Note that you can file the charge with the agency location closest to you, but the EEOC will probably launch the investigation from the branch nearest the business in question.
Conciliation and litigation
If the EEOC concludes through the investigation that discrimination occurred, the commission will initially attempt to resolve the matter informally through conciliation, conference, or persuasion. Most cases are resolved in this matter. However, if the employer refuses to voluntarily settle, the EEOC can file a lawsuit in federal court.
In addition to regulating discrimination in the workplace, Title VII also provides the right for employees to file a complaint or take part in an investigation without fear of retaliatory action by the employer.
This is commonly referred to as whistleblower protection. While the protection doesn’t offer full immunity from discharge (you can still be fired for legitimate purposes, such as attendance or performance), the whistleblower protection ensures interested parties in the investigation can participate without fear of reprisal. Following is a list of the “protected activities” that an employer cannot terminate an employee for:
- Filing a complaint, or serving as a witness in a formal investigation or lawsuit
- Lodging a complaint with a manager or supervisor about discrimination or harassment
- Answering questions in the course of an employer-led investigation into alleged harassment
- Refusing to follow orders that would result in discrimination
- Asking managers or coworkers about salary information to uncover potentially discriminatory wages
- Requesting accommodation for a disability or a religious practice
- Resisting sexual advances, or intervening to protect others from unwelcome sexual advances
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