On April 20 the Equal Employment Opportunity Commission issued a ruling concerning employment discrimination. Before I reveal it, though, here is a short history lesson in employment law.
In 1964, the most comprehensive piece of civil rights legislation in history was signed into law. Title VII of the Civil Rights Act addresses discrimination in the workplace. Section 703 reads:
It shall be an unlawful employment practice for an employer –
- to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
- to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
Note the five categories specifically included in the original legislation: sex, color, race, religion, and national origin. Exempted from protection, “members of Communist Party or Communist-action or Communist-front organizations” and “the phrase ‘unlawful employment practice’ shall not be deemed to include any action or measure taken by an employer, labor organization, joint labor management committee, or employment agency with respect to an individual who is a member of the Communist Partyof the United States…” (emphasis added).
Section 705 established the Equal Opportunity Commission, to be composed of five members appointed by the President of the United States. No more than three members may be from the same political party. One more tedious but critical bit of information about the EEOC: Section 706 sets forth the Commission’s power and Section 715 specifically states that the Commission “shall transmit to the President and to the Congress a report of its activities, together with such recommendations for legislative or administrative changes as it concludes are desirable…” (emphasis added). In short, EEOC recommendations are to be informative, but not binding without properly proceeding through the legislative process. Please refer to School House Rock for a full explanation of “How a Bill becomes a Law.”
Courts have traditionally given great deference to EEOC recommendations, but now the EEOC appears to be making a naked power grab. On April 20th, the EEOC designated “trans-gender” status as a protected category under Title VII in clear violation of the intent of the original legislation. In the context of this law, “sex” has a specific meaning.* It is defined per one’s biology at birth. Gender, on the other hand, is not straightforwardly linked to one’s physiology. The intent of Congress was clearly to protect sex, not gender.
This does not mean that gender cannot be protected under civil rights law. Legislation passed since the original bill has added veteran’s status, age, and disability as protected categories. These, though, were implemented through the appropriate branch of government–Congress. The Constitution does not grant the EEOC the power to create Federal law through fiat.
It was precisely this kind of power grab that Congressional leaders feared in the 1930’s with the passage of President Roosevelt’s New Deal. Congressional Republicans challenged the Constitutionality of the National Labor Relations Board and other New Deal regulatory bodies for fear of their effectively side-stepping the Constitution. Fast forward a few decades and we can add the EEOC to our list of agencies in the Executive Branch thumbing their noses at the Legislative Branch.
Herein lies the real issue. Our nation is smothered with Executive Branch dictates. Recently, EPA official Al Armendariz let slip that the EPA sought to “crucify” companies breaking regulations as a deterrent to others. He resigned over his comments, but some of us wonder if his phrasing may have revealed an unpleasant truth about federal agencies in general.
Trans-gendered status and sexual orientation are worthy of debate in the context of employment law. The debate, however, lies with Congress and not the EEOC. The Executive Branch lacks the constitutional authority to create a protected category not specified in legislation. Doing so violates a foundational principle of our system of checks and balances.
Joseph M. Goodman, PhD, SPHR can be found polluting the minds of the next Human Resource Management Professionals at a large public university. He wanted to write a humorous article but his sensitivity to the topic dictated a certain decorum. He also wishes to note the irony of having President Lyndon Johnson’s signature on the Civil Rights Act of 1964, given his civil rights voting history. Finally, he would like to chastise both Democrats and Republicans for routinely abusing regulatory powers, thereby assaulting our liberties.
*Interestingly, the addition of sex as a protected category was a fluke. Sex was introduced as a protected category by Howard W. Smith of Virginia, thinking its inclusion would kill the Bill altogether. Now sex is well-established as a protected category and accounts for the majority of EEOC discrimination filings.