On July 17, the U.S. Equal Employment Opportunity Commission (EEOC) ruled in a 3-2 decision that sexual orientation discrimination is illegal under Title VII of the Civil Rights Act of 1964 because it’s a form of “sex” discrimination, which is explicitly forbidden. The EEOC relied on its previous decision finding that Title VII bars discrimination on the basis of gender identity, protecting transgender employees, but this groundbreaking decision effectively declares that employment discrimination against gay, lesbian and bisexual workers is unlawful in all 50 states. The EEOC’s ruling is not nearly as “out of the blue” as it may seem to most people and it has nothing to do with the recent Obergefell v. Hodges, 576 U.S. ___ (2015), decision rendering marriage legal nationwide for gay people. The EEOC’s decision regarding LGBT discrimination in the workplace has been a long time in the making and can be traced back to a unanimous 1998 U.S. Supreme Court opinion in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), written by none other than Justice Antonin Scalia.
The Oncale decision confronted Title VII’s prohibition of discrimination “because of sex” after plaintiff Joseph Oncale was brutally sexually harassed physically and verbally by seven men he worked with on an oil rig. Even though Scalia acknowledged that male-on-male sexual harassment “was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” he continued by stating that “statutory prohibitions often go beyond the principal evil 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.”
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