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Does discrimination against gays and lesbians amount to sex discrimination?

Posted by Eric Kingsley | Feb 23, 2016 | 0 Comments

A recent editorial in the Los Angeles Times argued for the inclusion of sexual orientation discrimination in the definition of sex discrimination under Title VII of the Civil Rights Act. (click here for the article)



Workplace discrimination based on sexual orientation is illegal, the U.S. Equal Employment Opportunity Commission (EEOC) concluded last July, in a groundbreaking ruling that now provides new protections for LGBT Americans. In its decision, the EEOC said that employers who discriminate against LGBT workers are violating Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination “based on race, color, religion, sex and national origin.”

In the past, courts have ruled that Title VII does not cover discrimination based on sexual orientation because it's not explicitly mentioned in the law, but the EEOC's ruling disputes that reasoning. “Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee's sex,” the EEOC concluded. The committee argued that if an employer discriminated against a lesbian for displaying a photo of her wife, but not a straight man for showing a photo of his wife, that amounts to sex discrimination.

The LA Times article suggests the EEOC's ruling provides the Obama administration justification to declare that additional protections already exists in the Civil Rights Act's ban on discrimination based on an individual's “sex.” According to the article, “It's an audacious approach to overcoming legislative gridlock, but it's also a defensible reading of the law in light of an evolving understanding of sexuality, gender and the harm inflicted by stereotypes about both aspects of human existence.”

Stated more succinctly, the article highlights the American Civil Liberties Union, or ACLU's ask–In a letter to Atty. Gen. Loretta Lynch, the ACLU called for a “formal announcement” that the Justice Department will take the position in litigation that discrimination on the basis of sexual orientation constitutes “sex stereotyping” and amounts to sex discrimination under current law.

The EEOC and California Employment Law

Members of Congress and the Obama Administration are not likely to pass sweeping legislation making it clear that no one may be denied a job or a promotion because of their sexual orientation or gender identity.  While the debate continues around the interpretation of the Civil Rights Act, the EEOC provides guidance and cites precedent-setting cases on its website here.

While the EEOC is responsible for enforcing federal laws against employment discrimination, proving discrimination can be challenging.  If you feel you have been discriminated against due to a disability, or a perceived disability, the experienced lawyers at Kingsley & Kingsley can help. Take the first step to protecting yourself and stopping this hurtful and illegal behavior.  Take advantage of a free initial consultation by calling us toll free at (888) 500-8469 or by clicking here to contact usregarding your case.

About the Author

Eric Kingsley

In practice since 1996, the firm's lawyer and co-founder, Eric B. Kingsley, has litigated complex cases and written numerous appeals in state and federal courts on behalf of the California law firm Kingsley & Kingsley, including More than 150 collective actions. Mr. Kingsley focuses his practice ...


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