Thursday, August 22, 2019

The EEOC asks the Supreme Court to legalize sex discrimination

This fall, the Supreme Court will hear argument in three cases to decide whether Title VII’s coverage of sex discrimination also implicitly protects LGBTQ employees from discrimination. Last week, the EEOC filed its brief in the cases, making a startling argument in favor of legalizing not just LGBTQ discrimination, but all sex discrimination.

“Sex stereotyping by itself is not a Title VII violation”

That “sex stereotyping” is no different than “sex discrimination” has been the law of the land since the Supreme Court decided Price Waterhouse v. Hopkins 30 years ago. Arguing against Title VII’s continued protection of sex-based stereotypes is no different than arguing against Title VII’s continued protection of sex discrimination. A ruling against the protection of sex-based stereotypes will not just legalize LGBTQ discrimination, but also a whole litany of discrimination against straight men and women. 

It’s astounding that the EEOC is arguing that Title VII’s prohibition against discrimination because of sex does not prohibit employers from discriminating on the basis of stereotypes related to sex. Indeed, a ruling in the EEOC’s favor on this issue would dramatically change workplace protections for all women—LGBTQ and non-LGBTQ. In other words, it would legalize discrimination against men with long hair and women with short hair, women who wear pants (one of the actual issues in Price Waterhouse); men who are primary caregivers to children or parents; and women who are the primary breadwinners for their families or otherwise work outside the home. It won’t just take us to pre-1989, but to pre-1959.

While I have my doubts over this Supreme Court doing the right thing on the overarching issue of LGBTQ discrimination, I’d be shocked if the court went so far as to legalize all sexual stereotypes in employment. Regardless, we should all be appalled that the EEOC, the federal agency charged with protecting civil rights in employment, would even make the ask.

* Image by Oberholster Venita from Pixabay