The recent Supreme Court decision legalizing same-sex marriage marks a major expansion of civil rights in this country. The decision will also give some additional legal protections to gay, lesbian and transgender individuals in the workplace. In the wake of the decision, the Equal Employment Opportunity Commission ruled that sexual orientation is covered by federal anti-discrimination laws. So what do these developments mean, and how can gay and lesbian individuals protect their newly won civil rights?
What does the EEOC ruling mean to gays and lesbians in the workplace?
The EEOC ruling means that the EEOC will investigate charges of sexual-orientation discrimination. This is important because filing a charge with the EEOC or a fair-employment agency is a requirement for filing a lawsuit. To file with the EEOC, an employee must file within 180 days of the last act of discrimination. They may have longer if a state or local law recognizes that type of discrimination and has a longer time for filing. In a state like Nebraska, where sexual orientation isn’t recognized by our anti-discrimination laws, it is a much safer route to file with the EEOC within 180 days. Check with your state or local equal-opportunity commission to see if they will also file your charge with the EEOC, even if they don’t recognize sexual orientation as a class. Again, beware of deadlines. Nebraska normally allows 300 days for a charge of discrimination, but it is safer to assume you only have 180 days to file a charge based on sexual orientation. Remember that filing a charge means that an investigator has written out your charge and that you have signed and notarized the charge. This takes time, so if you want to file a discrimination charge, you need to move quickly.
What does the same-sex marriage decision mean for gays and lesbians in the workplace?
The decision should grant anti-discrimination protections in the workplace to gays and lesbians in same-sex marriages based on the family status under Title VII and likely under similar state and local laws. The decision doesn’t change the fact that many federal courts hold that discrimination against gay, lesbian and transgender individuals is a form of unlawful sex discrimination. If your sexual-orientation discrimination decision involves your marital status, be sure to add that into your charge. If you are past the 180-day EEOC deadline, you may be able to still meet a longer state deadline. The same could also be said of filing a sexual-orientation discrimination complaint as a sex- or gender-discrimination complaint.
What the Supreme Court and EEOC decisions don’t mean
Ultimately gays, lesbians and transgender individuals will only get the full protections of anti-discrimination laws in the workplace when either courts and or legislative bodies explicitly expand those protections to them. The Obergefell decision didn’t do that. The EEOC doesn’t make law, and its interpretations of the law aren’t binding like those of a court decision. Furthermore, federal courts are giving increasingly less deference to the opinions of agencies like the EEOC and increasingly willing to second guess how the EEOC operates. Unless you live in the District of Columbia or one of the 22 states, such as Iowa, or a city such as Omaha that prohibit sexual orientation discrimination in the workplace, then your road to the courthouse in a discrimination claim is unclear. However, in states like Nebraska that don’t explicitly ban sexual-orientation discrimination under state law, the road to workplace justice for gays and lesbians has gotten easier in the last few weeks.
In addition, the Equality Act was recently introduced in Congress. “The law, whose language was provided to the Advocate, would amend the 1964 Civil Rights Act and other federal law to protect LGBT people from discrimination in employment, housing, public accommodations and other arenas,” according to an article in Politico.