The Equal Employment Opportunity Commission (“EEOC”) recently came to the conclusion that employment discrimination based on sexual orientation is already illegal under federal law. At first, this seems like a huge step forward for the gay, lesbian, and bisexual community in the United States. Unfortunately for them, as of right now, the federal courts do not have to enforce the EEOC’s ruling.

The Already-Existing Federal Law

The EEOC justified its ruling on sexual orientation discrimination by citing Title VII of the Civil Rights Act of 1964. Title VII protects employees from discrimination on the basis of race, color, religion, sex, and national origin. Title VII does not explicitly protect employees from discrimination on the basis of sexual orientation. In its 3-2 decision, however, the EEOC ruled that discrimination based on sexual orientation is sex-based discrimination. Since “sex” is included in Title VII, the EEOC believes that sexual orientation discrimination, as a form of sex discrimination, is already illegal.

The Logic Behind the EEOC’s Ruling

In the opinion, which was 17 pages long, the EEOC explains that “Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. ‘Sexual orientation’ as a concept cannot be defined or understood without reference to sex.” Essentially, before you can discriminate against an employee on the basis of sexual orientation, you must consider his or her sex.

Let’s say Amanda is a lesbian who is married to a woman. Her boss notices a photo of Amanda’s wife on her desk and is not pleased. He treats her poorly because of her sexual orientation. The employer would not treat a man differently if he married a woman or if he displayed his wife’s photo on his desk. That is precisely the Title VII issue: differential treatment of the sexes. The employer had to consider Amanda’s sex when he discriminated against her.

The Legal Issue with the EEOC’s Ruling

The EEOC enforces civil rights laws, but its decisions are not binding on courts. As we know, the legislative branch creates our laws and the judicial branch, or court system, is tasked with interpreting them. In the EEOC’s decision regarding sexual orientation discrimination, it, although it is not a court, interpreted Title VII.

Referring to the “sex” provision in the law, the EEOC came to the conclusion that sex discrimination includes sexual orientation discrimination. Despite this, a court could very well dismiss a sexual orientation discrimination lawsuit as frivolous, since sexual orientation is not explicitly protected under federal law.

It is now up to the federal circuit courts to accept or reject this EEOC decision. We can expect that not all courts will agree with each other. Until the Supreme Court rules on this matter, the lower courts will have to come to their own conclusions. In time, we will see how they react.

If the EEOC’s decision is widely accepted by the courts, it will be a huge victory for the gay, lesbian, and bisexual community. Although the EEOC focuses solely on employment matters, its decision has the potential to promote change in areas outside of employment. If sexual orientation discrimination is considered sex discrimination in employment, shouldn’t is be considered sex discrimination in other areas as well?