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

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. INTRODUCTION ........................................................................... 1398 II. THE EEOC AND JUDICIAL REVIEW .............................................. 1400 A. T HE O RIGIN AND P OWERS OF A DMINISTRATIVE A GENCIES ....... 1400 B. T HE EEOC AND T ITLE VII ..................................................... 1402 C. A DMINISTRATIVE A GENCIES AND J UDICIAL R EVIEW .................. 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. T HE C URRENT C LIMATE OF LGBT W ORKPLACE D ISCRIMINATION ................................................................... 1408 B. S TATE A NTI -D ISCRIMINATION S TATUTES ................................ 1410 C. T HE OBERGEFELL E XIGENCY ................................................ 1411 IV. THE DECISIONS ........................................................................... 1411 A. MACY V. HOLDER (2012) ..................................................... 1412 B. BALDWIN V. FOXX (2015) ................................................... 1415 V. THE CASE FOR DEFERENCE ......................................................... 1418 A. T HE EEOC’ S H ISTORY OF L ESSER D EFERENCE ......................... 1419 B. A WARDING CHEVRON D EFERENCE 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. A WARDING SKIDMORE D EFERENCE 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 LGBT 2 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. 2017] LGBT DISCRIMINATION AS SEX DISCRIMINATION 1399 revealed that approximately 75% of Americans incorrectly assume that federal workplace anti-discrimination statutes address gender identity and sexual orientation discrimination. 6 Thus, the LGBT community continues to suffer significant discriminatory treatment in the workplace without meaningful public awareness. In 2012 and 2015, the United States Equal Employment Opportunity Commission (“EEOC”) adjudicated the cases of Macy and Foxx , respectively. 7 In these cases, the EEOC interpreted Title VII of the 1964 Civil Rights Act (“Title VII”) to incorporate gender identity and sexual orientation within the statue’s prohibition against workplace “sex” discrimination. 8 Through these decisions, the EEOC provided a new vehicle for addressing LGBT employment discrimination: administrative deference. The doctrine of administrative deference permits courts to defer to a reasonable agency interpretation of a statute that Congress has given the agency authority to enforce. 9 Because the EEOC is tasked with enforcing Title VII, by deferring to the EEOC’s decisions in Macy and Foxx , courts could enforce Title VII against private employers, thereby providing an immediate remedy to victims of impermissible gender identity and sexual orientation discrimination. This Note argues that courts should defer to the EEOC’s interpretations of Title VII in Macy and Foxx , and thereby incorporate gender identity and sexual orientation within Title VII’s statutory protections. Part II explores the origins and powers of administrative agencies, the doctrine of judicial review, and the role that the EEOC plays in enforcing Title VII in both the public and private sectors. Part III discusses the current climate of LGBT workplace discrimination, provides an overview of which states have enacted ordinances to combat such discrimination, and discusses how Obergefell v. Hodges made the need to incorporate gender identity and sexual orientation within Title VII imminent. Part IV explores the facts of Macy and Foxx , and examines the EEOC’s proffered rationales in each case. Finally, Part V notes the inconsistent history of awarding deference to the EEOC, argues that Macy and Foxx should be awarded Chevron deference, and then argues in the alternative that Macy and Foxx are entitled to Skidmore deference. 6. ROBERT P. JONES ET AL., PUB. RELIGION RESEARCH INST., A SHIFTING LANDSCAPE: A DECADE OF CHANGE IN AMERICAN ATTITUDES ABOUT SAME-SEX MARRIAGE AND LGBT ISSUES 35 (2014), http:// www.prri.org/wp-content/uploads/2014/02/2014.LGBT_REPORT.pdf (“Three-quarters (75%) of Americans incorrectly believe it is currently illegal under federal law to fire or refuse to hire someone because they are gay, lesbian, bisexual, or transgender.”). 7. Baldwin v. Foxx, Appeal No. 0120133080, 2015 WL 4397641 (E.E.O.C. July 15, 2015); Macy v. Holder, Appeal No. 0120120821, 2012 WL 1435995 (E.E.O.C. Apr. 20, 2012). 8. See Foxx , 2015 WL 4397641, at *4; Macy , 2012 WL 1435995, at *4. 9. Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984) (“We have long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations.” (footnote omitted)). 1400 IOWA LAW REVIEW [Vol. 102:1397 II. THE EEOC AND JUDICIAL REVIEW A. T HE O RIGIN AND P OWERS OF A DMINISTRATIVE A GENCIES Administrative agencies are executive bodies created by Congress that establish rules and regulations within a designated field of control. 10 Administrative agencies perform all government action outside of the three constitutionally established branches of the Executive, Legislature, and Judiciary. 11 There are two types of administrative agencies: cabinet agencies and independent agencies. 12 Cabinet agencies are led by a secretary, who reports to and serves at the pleasure of the President. 13 Independent agencies are led by an individual or group of individuals, often labeled a Commission, who serve for a term of years and are only removable for cause. 14 Congress creates an agency by passing an “organic” act, which enumerates the agency’s structure, powers, and limitations. 15 An indispensable requirement of an organic act is that it contain “an intelligible principle to which the person or body authorized to [act] . . . is directed to conform,” thereby avoiding unconstitutionally delegating legislative power. 16 10. PETER L. STRAUSS ET AL., GELLHORN AND BYSE’S ADMINISTRATIVE LAW: CASES AND COMMENTS 12 (11th ed. 2011). 11. Id. 12. Id. at 14. 13. Id. ; s ee also, e.g. , About the Department of Defense (DoD) , U.S. DEP’T DEF., http://www.defense. gov/About-DoD (last visited Jan. 1, 2017) (led by Secretary of Defense Ash Carter); Who We Are , U.S...