The Case for Deferring to the EEOC's Interpretations in Macy and Foxx to Classify LGBT Discrimination as Sex Discrimination Under Title VII

Author:Tessa M. Register
Position:J.D. Candidate, The University of Iowa College of Law, 2017. B.A., University of California, Riverside, 2013
Pages:1397-1425
SUMMARY

In 2012 and 2015, the United States Equal Employment Opportunity Commission determined that Title VII of the Civil Rights Act of 1964 prohibits federal employers from discriminating against employees on the basis of gender identity and sexual orientation, respectively. The agency's determinations reflect not only the policy preferences of the Obama Administration, but also of a growing percentage ... (see full summary)

 
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1397
The Case for Deferring to the EEOC’s
Interpretations in Macy and Foxx to
Classify LGBT Discrimination as Sex
Discrimination Under Title VII
Tessa M. Register*
ABSTRACT: In 2012 and 2015, the United States Equal Employment
Opportunity Commission determined that Title VII of the Civil Rights Act of
1964 prohibits federal employers from discriminating against employees on
the basis of gender identity and sexual orientation, respectively. The agency’s
determinations reflect not only the policy preferences of the Obama
Administration, but also of a growing percentage of Americans who believe
LGBT citizens should enjoy the same federal statutory protections as other
protected classes. Although a select number of states have enacted statutes
prohibiting workplace discrimination on the basis of gender identity and
sexual orientation, many private employers face no legal consequences for
discriminating against LGBT employees. This Note argues that rather than
wait for legislative action, courts should defer to the EEOC’s interpretations
in Macy and Foxx in order to swiftly incorporate gender identity and sexual
orientation within Title VII, thereby prohibiting private employers from
discriminating on these bases.
I. I
NTRODUCTION ........................................................................... 1398
II. THE EEOC AND JUDICIAL REVIEW .............................................. 1400
A. THE ORIGIN AND POWERS OF ADMINISTRATIVE AGENCIES ....... 1400
B. THE EEOC AND TITLE VII ..................................................... 1402
C. ADMINISTRATIVE AGENCIES AND JUDICIAL REVIEW .................. 1403
III. GENDER IDENTITY AND SEXUAL ORIENTATION DISCRIMINATION
IN THE WORKPLACE .................................................................... 1408
*
J.D. Candidate, The University of Iowa College of Law, 2017. B.A., University of
California, Riverside, 2013. I would like to extend special thanks to Professor Kathryn Kovacs for
introducing me to this topic and Professor Angela Onwuachi-Willig for her guidance and
continual support. I am also grateful for Evelyn Anderson, Matthew Cubin, and the editors of
Volumes 101 and 102 of the Iowa Law Review for their hard work on this Note.
1398 IOWA LAW REVIEW [Vol. 102:1397
A. THE CURRENT CLIMATE OF LGBT WORKPLACE
DISCRIMINATION ................................................................... 1408
B. STATE ANTI-DISCRIMINATION STATUTES ................................ 1410
C. THE OBERGEFELL EXIGENCY ................................................ 1411
IV. THE DECISIONS ........................................................................... 1411
A. MACY V. HOLDER (2012)..................................................... 1412
B. BALDWIN V. FOXX (2015) ................................................... 1415
V. THE CASE FOR DEFERENCE ......................................................... 1418
A. THE EEOC’S HISTORY OF LESSER DEFERENCE ......................... 1419
B. AWARDING CHEVRON DEFERENCE TO MACY AND FOXX ......... 1420
1. Chevron Step Zero: The Force of Law .......................... 1420
2. Chevron Step One: Statutory Ambiguity ....................... 1420
3. Chevron Step Two: A Permissible Construction ........... 1422
C. AWARDING SKIDMORE DEFERENCE TO MACY AND FOXX ........ 1423
VI. CONCLUSION .............................................................................. 1425
I. INTRODUCTION
On June 26, 2015, the Supreme Court announced that the Fourteenth
Amendment requires states to recognize and grant marriage licenses to same-
sex couples.1 The decision was heralded as an enormous step forward for the
LGBT2 community—even the White House joined in the celebration by
projecting rainbow-colored lights onto its exterior.3 However, the victory was
bittersweet. Same-sex couples can now wed on Saturday and then, in a
majority of states, be fired from their jobs on Monday solely because of their
sexual orientation.4 An even greater number of states fail to protect against
workplace discrimination on the basis of gender identity.5 A 2014 study
1. Obergefell v. Hodges, 135 S. Ct. 2584, 2604 (2015) (“[T]he right to marry is a
fundamental right inherent in the liberty of the person, and under the Due Process and Equal
Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived
of that right and that liberty.”).
2. LGBT is an acronym that stands for Lesbian, Gay, Bisexual, and Transgender. The
complete acronym is “LGBTQIA,” which stands for Lesbian, Gay, Bisexual, Transgender, Queer,
Intersex, and Asexual. Kayley Weinberg, NOW Updates Acronym: LGBTQIA, NOW (Aug. 11, 2014),
http://www.now.org/blog/now-updates-acronym-lgbtqia. Because this Note focuses on the
workplace rights of only lesbian, gay, bisexual, and transgender employees, this author uses the
LGBT acronym.
3. Allie Malloy & Karl de Vries, White House Shines Rainbow Colors to Hail Same-Sex Marriage
Ruling, CNN POL. (June 30, 2015, 1:33 PM), http://www.cnn.com/2015/06/26/politics/white-
house-rainbow-marriage.
4. See infra Part III.B.
5. See infra Part III.B.

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