Bench Memos

Law & the Courts

EEOC vs. Congress and Courts on Title VII and Sexual-Orientation Discrimination

Over a period of decades, every federal courts of appeals that has addressed the question has ruled that Title VII’s bar on sex discrimination in employment does not encompass a bar on sexual-orientation discrimination. See, e.g.:

First Circuit—Higgins v. New Balance Athletic Shoe, 194 F.3d 252 (1999) (“we regard it as settled law that, as drafted and authoritatively construed, Title VII does not proscribe harassment simply because of sexual orientation”)

Second Circuit—Dawson v. Bumble & Bumble, 398 F.3d 211 (2005) (“‘[t]he law is well-settled in this circuit and in all others to have reached the question that Title VII does not prohibit harassment or discrimination because of sexual orientation’”)

Third Circuit—Bibby v. Philadelphia Coca-Cola Bottling Co., 260 F.3d 257 (2001) (“It is clear … that Title VII does not prohibit discrimination based on sexual orientation”)

Fourth Circuit—Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745 (1996) (lead and concurring opinions agree that “Title VII does not prohibit conduct based on the employee’s sexual orientation”)

Seventh Circuit—Spearman v. Ford Motor Co., 231 F.3d 1080 (2000) (“harassment based solely upon a person’s sexual preference or orientation (and not on one’s sex) is not an unlawful employment practice under Title VII”)

Eighth Circuit—Williamson v. A.G. Edwards & Sons, 876 F.2d 69 (1989) (“Title VII does not prohibit discrimination against homosexuals”)

Ninth Circuit—DeSantis v. Pacific Telephone & Telegraph, 608 F.2d 327 (1979) (“we conclude that Title VII’s prohibition of ‘sex’ discrimination applies only to discrimination on the basis of gender and should not be judicially extended to include sexual preference such as homosexuality”)

But this uniformity of federal circuit law hasn’t deterred the ideologues at the EEOC (whose antics I’ve had occasion to discuss before—here, here, and here). Last week, by a 3-2 vote, the EEOC, with only a few clipped references to the corpus of contrary federal appellate opinions, issued a decision ruling that “[s]exual orientation discrimination is sex discrimination” under Title VII.

The Supreme Court has made clear that EEOC interpretations of Title VII are not entitled to Chevron deference in the courts, so there is no occasion for any circuit panel to revisit circuit precedent on this question. But the EEOC is apparently intent on nonetheless imposing its own inconsistent legal regime on the nation’s employers.

Congress has been in the midst of a years-long debate over whether to amend Title VII to bar discrimination on the basis of sexual orientation. That debate may soon intensify. It’s the ordinary legislative process in Congress, not the bureaucratic machinations of EEOC ideologues, that ought to decide this issue. 

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