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Employers this week eagerly awaited the most recent decision by the Equal Employment Opportunity Commission on the rights of employees based on their sexual orientation. Once the 3-2 decision was released, savvy employers should have begun altering their practices and policies to ensure compliance with the new rule of law. While there may be some employers who disagree with the majority of the Commission, there is little argument to the contrary that the decision is the way of the country’s future.

The Final Ruling

The ruling is the Commission’s final word on a case that has been pending since 2012, when a man filed a discrimination lawsuit arguing that he was denied a promotional position because of his sexual orientation. The employment decision involved the man’s application to a federal position, which is directly within the Commission’s jurisdiction as a federal administrative enforcement agency. The ruling was actually an appellate ruling by the Commission after the agency dismissed the initial case on jurisdictional grounds. On appeal, the Commission not only found the case to be jurisdictional, but also found that sexual orientation discrimination was prohibited under Title VII of the Civil Rights Act of 1964. The decision is somewhat controversial because, as some opponents have been quick to point out, sexual orientation is not one of the protected classes explicitly contained in the language of Title VII.  Seemingly in response to these detractors, the Commission found that protections for employees based on sexual orientation are implicit in the law’s protections against “sex-based considerations” made by employers.

The Reach of the Decision

Many opponents of the ruling argue that the decision was far from unanimous and cite many of the points made by the minority to defend employers’ rights to base employment decisions on sexual orientation.  Another argument, possibly among the most cogent, is that this ruling only applies to federal employers given the fact that the Commission is a federal oversight agency. Employers should use caution, however, if relying on this argument to defend employment decisions as the Commission has stated its intent to extend the protections of the ruling, to the extent possible, to all cases that come before its offices. This intent means that any employer having greater than 15 employees would be required to be in compliance with the ruling and not discriminate based on an applicant or employee’s sexual orientation. Proponents of the rule are celebrating its reach, but are also calling on municipal and state governments to create legislation that explicitly includes sexual orientation as a protected class.

Questions?

If you are an employer, regardless of the number of employees in your company, it is essential that you understand the new ruling in its entirety to ensure that your company does not unwittingly violate state and federal anti-discrimination statutes. For questions about the ruling, or how it affects your company, call Garcia & Gurney today for a consultation with an experienced attorney. Our professionals can provide answers to your questions and representation, if necessary.

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