From Sex to Gender: The Transformation of Title VII

Last week's EEOC decision against the Department of Transportation resulted in another barrier broken in the LGBT equality movement. The case involved an employee who was not considered for the position as a front line manager at the air traffic control tower at Miami International Airport.  The employee claimed discrimination based on being gay.  Like many LGBT individuals, the employee was subjected to harassment by a supervisor. The Complainant alleged that his supervisor, who was involved in the promotion selection process, "made several negative comments about the Complainant's sexual orientation."  In particular, the supervisor objected to any reference the employee made to the employee's partner.

 The EEOC took great care in explaining its reasoning for interpreting that the straight man's discrimination against the gay employee was properly categorized as sex discrimination.  Essentially, said the agency, the discrimination is based not upon the sex of the employee but the sex of the individual with whom the employee has a romantic relationship.

The agency had precedent for making explicit a form of discrimination that can  be read as encompassed in the intent of Title VII.  In Oncale v. Sundowner, also a Title VII lawsuit, Justice Scalia noted: "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."

While some may find the EEOC's reasoning an administrative stretch, the decision follows a logical argument based upon gender stereotyping.  When the Complainant chose a male partner, the supervisor was offended by his failure to conform to the gender stereotype of men choosing female partners. Human rights advocates, particularly those who advance LGBT rights, are relieved. This decision  is binding on employers who fall under EEOC jurisdiction.  Through this decision, the EEOC has elevated the status of discrimination against same sex individuals and save the movement from what could have been a long and expensive attempt to pass amending or at least clarifying legislation. 

LGBT barriers are falling quickly, and falling in a variety of legal settings.  The cumulative decisions from agencies, state and federal, as well as a series of state and federal executive orders,  added to existing case law, could  eliminate many legal barriers. By the time an LGBT suit specifically seeking suspect class status reaches the U.S. Supreme Court, there could be a plethora of  lower court and administrative decisions that provide support for the ultimate classification LGBT individuals seek.