Despite past attempts to pass a comprehensive federal-employment law protecting gays, lesbians and transgendered persons, there is currently no federal statute explicitly forbidding sexual-orientation or gender-identity discrimination.
At the state level, only 22 states have laws against employment, housing and public-accommodation discrimination based on a person’s sexual orientation, and only 19 of these include gender-identity protection.
This could all change in the foreseeable future, depending on whether two rulings by the Equal Employment Opportunity Commission (EEOC) are used by federal and state courts to expand the definition of “sex” discrimination. Sex discrimination is already forbidden by federal law in areas of employment, housing and education. Likewise, most states provide similar protections against discrimination based on sex. Oklahoma’s Anti-Discrimination Act (Title 25, Oklahoma Statutes, Sections 1101 et seq), protects against sex discrimination in the areas of employment, housing and public accommodation. Neither “sexual orientation” nor “gender identity” is referenced specifically by name in the Oklahoma act.
On July 15, the EEOC, the federal agency charged with the responsibility for enforcing federal employment discrimination statutes, ruled in Baldwin v. Foxx that, under Title VII of the 1964 Civil Rights Act, sexual orientation discrimination in the workplace is a form of “sex” discrimination. Three years earlier, in Macy v. Holder, the EEOC came to a similar conclusion involving transgender discrimination, holding that claims involving gender-identity discrimination were legally recognizable under Title VII.
In the Macy decision, the EEOC stated the definition of sex necessarily includes “cultural and social aspects associated with masculinity and femininity” and that discriminatory job action based on employers’ prejudices about gender norms was the precise kind of harm Title VII was intended to prohibit.
That decision referenced the Supreme Court’s observation in Price Waterhouse v. Hopkins that,
We are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.
In the July 15 Baldwin decision, the EEOC concluded that sexual orientation “as a concept” cannot be defined or understood “without reference to sex.” Thus, according to the EEOC, allegations of sexual-orientation discrimination involve sex-based considerations.
Both EEOC rulings have significant implications.
EEOC decisions, while not binding on the federal judiciary, are accorded authoritative respect in matters of employment. Already, the Macy ruling on transgender-employment rights has found acceptance in the federal judiciary. If the Baldwin reasoning that sexual orientation is a form of sex discrimination now finds similar acceptance, it would be logical to assume that such reasoning could be applied in other areas as well.
If such occurs, then federal and state courts interpreting Oklahoma’s Anti-Discrimination Act (specifically the prohibition against “sex” discrimination) could foreseeably be expected to take into account how an identical prohibition — when it comes to discrimination based on sexual orientation and gender identity — is viewed under substantially similar circumstances by the EEOC and other courts.
The potential landmark impact of these EEOC rulings — particularly if adopted by federal and state courts and applied broadly in other areas beyond job discrimination — cannot be overstated.