A New Twist on Sex Discrimination

"Married at 10 a.m., fired at noon."

That's the risk that same-sex couples still face in the majority of states that lack laws protecting LGBT people from job discrimination.

The best fix would be a federal law that expressly protects employees from discrimination based on sexual orientation. But the proposed law that would do just that - and also protect transgender employees from workplace bias - has been languishing in Congress for years, with little prospect for passage anytime soon.

Enter the Equal Employment Opportunity Commission, which has stepped headlong into this regulatory vacuum. Just last year, the EEOC ruled that it was illegal for an air traffic controller to be passed over for a permanent job just because he was gay. The legal explanation was that sexual orientation discrimination is a form of sex discrimination - which is banned by the Civil Rights Act of 1964. The reasoning goes that if Brad gets fired for marrying George, the outcome would've been different if Brad were a woman. That's classic sex discrimination.

That decision builds on an earlier EEOC ruling that transgender employees are protected from job discrimination under the Civil Rights Act. The reasoning there was that any form of transgender discrimination is sex discrimination because it inherently involves taking gender - and therefore sex - into account.

Of course, the federal courts are the final arbiters of what counts as sex discrimination under federal law, and it remains to be seen whether they will agree with the EEOC. But there is reason for optimism. Just recently, a federal appeals court in Virginia ruled that denying transgender students the use of a bathroom that corresponds to their gender identity can qualify as sex discrimination under another part of the Civil Rights Act. And now, a few lower courts have begun analyzing anti-gay bias in the workplace as sex discrimination.

Being fired by noon may soon be another thing of the past.

With a Perspective, I'm Clyde Wadsworth.

Clyde Wadsworth is an attorney practicing business and civil rights law.