By Ian Bush
PHILADELPHIA (CBS) — Neither federal law nor what’s on the books in more than half the states — including Pennsylvania — includes specific protections for lesbian, gay, bisexual, and transgender workers. But the Equal Employment Opportunity Commission has decided the “sex” part of the employment discrimination ban based on “race, color, religion, sex, and national origin” in the Civil Rights Act of 1964 covers it.
But the issue isn’t settled. The move, announced without fanfare this past week by the EEOC, is persuasive but not binding on federal courts.
“The Third Circuit Court of Appeals back in 2001 ruled that sexual orientation is not covered under this federal anti-discrimination statute,” explains Eric Meyer, law partner with Dilworth Paxson’s labor and employment practice in Philadelphia. “So this EEOC decision does nothing to change that. But it may be persuasive to encourage the Third Circuit going forward to change their mind.”
Such discrimination already is illegal in New Jersey and Delaware, along with about 20 other states. Philadelphia has its own regulations protecting LGBT workers from discrimination, as do the majority of Fortune 500 companies. Gay rights advocates hope for a legislative fix, though Republicans have been keen to let states decide the issue.
“Ideally for supporters, Congress would enact a law such as the Employment Non-Discrimination Act, or ENDA, which has been up for consideration several times in recent years,” Meyer says. “That would explicitly make it unlawful to discriminate based on sexual orientation. The second best thing would be to have the Supreme Court recognize that existing law prohibits discrimination based on sexual orientation. Short of that, there are going to be differences on how sexual orientation discrimination is treated.”