Norton, Former EEOC Chair, Says Commission Decision That Title VII Covers LGBTQ Job Discrimination Follows Logic of Court Decisions

WASHINGTON, D.C.—Congresswoman Eleanor Holmes Norton (D-DC), a former chair of the Equal Employment Opportunity Commission (EEOC), issued a statement today congratulating the Commission for its "historic breakthrough ruling that ‘allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex.'"

"In reading the landmark EEOC decision, I was impressed by how the ruling cited a series of decisions, some involving complainants, finding that sex cannot be the basis for employment decisions. In its 3-2 majority opinion, the Commission was candid that its decision was a departure from the statutory approach that has depended on the addition of ‘protected clauses' to Title VII by Congress barring discrimination on the basis of race, color, sex, religion, national origin, and disability. The Commission said, ‘When an employee raises a claim of sexual orientation discrimination as sex discrimination under Tide VII, the question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. It is not. Rather, the question for purposes of Title VII coverage of a sexual orientation claim is the same as any other Title VII case involving allegations of sex discrimination—whether the agency has "relied on sex-based considerations" or "take[n] gender into account" when taking the challenged employment action….Congress may not have envisioned the application of Title VII to these situations. But as a unanimous Court stated in Oncale v. Sundowner Offshore Services, Inc., "statutory prohibitions often go beyond the principal evil [they were passed to combat] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed."'

"Throughout its decision, the Commission cited Supreme Court, Court of Appeals, and district court decisions that reinforce the Commission ruling allowing the complainant, a Supervisor Traffic Control Specialist in the Federal Aviation Administration's Miami control tower, to proceed to the show that he was not selected for the permanent position because he is gay. The complainant alleges anti-gay comments and actions by the supervisor.

"The Commission's ruling is, by definition, a landmark, gutsy decision. However, it is scholarly and well documented with court decisions that show the courts themselves making rulings based on the same logic of prior decisions the Commission utilized.

"The Commission and the courts together have followed logic for sex discrimination that has much in common with the logic of court rulings prior to the Supreme Court decision in Brown v. Board of Education. The NAACP Legal Defense Fund brought a series of cases that gradually showed that the states were unable to implement the 1896 Plessy v. Ferguson decision that separate facilities were constitutional if they were equal. The Supreme Court, therefore, found in Brown that state-ordered segregation is always unconstitutional. Similarly, the Commission in its decision found it impossible to continue to find that discrimination on the basis of sex applied to all forms of sex discrimination except discrimination based on sexual orientation.

"Cases increasingly filed before the commission, the expert agency Congress has charged with the job discrimination mission, demonstrated the justifiable impatience of the LGBTQ community with continuing unequal treatment in all areas of American life. The Commission could have equivocated. Instead, in this historic ruling, the Commission recognized its mandate, its obligation under the rule of law, and the logic of its own and U.S. court decisions."