EEOC files lawsuits alleging sexual orientation discrimination

In a press release this week, the U.S. Equal Employment Opportunity Commission (EEOC) announced it had filed the first lawsuits alleging sexual orientation discrimination is sex discrimination under Title VII of the Civil Rights Act of 1964. Click HERE for the press release.

RESPONSE FROM JERRY HUNTER, Partner, Bryan Cave

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Jerry M. Hunter Partner Bryan Cave

The Employment Non-Discrimination Act (ENDA) is legislation proposed in the United States Congress that would prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identity by employers with at least 15 employees. ENDA has been introduced in every Congress since 1994 except the 109th.

Congress generally does not attempt to enact a meaningless law. Therefore, the repeated introduction of this Act means Members of Congress believe that alleged discrimination based on sexual orientation and gender identity is NOT prohibited by current law, i.e., Title VII of the Civil Rights Act of 1964.

Still, the U.S. Equal Employment Opportunity Commission (EEOC) has decided to file two lawsuits and argue that Title VII does cover discrimination based on sexual orientation and gender identity. If the EEOC is correct in its view, then Congress has been wasting a lot of time for many decades by attempting to amend Title VII when it was totally unnecessary.

One strategy possibly being employed by the EEOC is selecting certain Federal Courts to file suit which it believes will be more predisposed to adopting its view of the current state of Title VII and whether Title VII currently covers sexual orientation and gender identity discrimination.

Bottom line: Neither Title VII of the Civil Rights Act of 1964 nor the Missouri Human Rights Act, as construed by the Missouri Court of Appeals in James Pittman v. Cook Paper Recycling Corp., covers alleged discrimination based on sexual orientation or gender identity.