Donald Livingston Quoted by Media on EEOC Gender Discrimination Ruling

Donald Livingston, a partner in the labor and employment practice at Akin Gump and a former general counsel at the Equal Employment Opportunity Commission (EEOC), has been quoted by the media regarding a ruling by the EEOC that discrimination based on sexual orientation violates Title VII of the 1964 Civil Rights Act.

Regarding the intent of Title VII, Livingston told Law360 the present interpretation of it is that it was not intended to and does not prohibit discrimination based on sexual orientation. Courts, he noted, usually rely on the EEOC’s reading of a statute if they agree with it and choose not to rely on the agency’s interpretation when they don’t, “which means that they pay very little attention to it at all.”

The key question, Livingston said, is not what one would want Title VII to prohibit, but rather what Congress’ intent was when it passed the law: “If it is plain from the language of Title VII that it prohibits discrimination on the basis of sexual orientation ... it is perplexing that this went unnoticed by the EEOC for 50 years.”

In the end, Livingston said, whether the EEOC’s view on Title VII and sexual orientation holds will likely be decided on a “jurisdiction-by-jurisdiction” basis. He added that it will be “one of the more interesting and predominant issues in employment discrimination for the next few years.” He pointed out, however, that congressional action to amend Title VII could moot the dispute about the scope of the law’s sex discrimination ban

Speaking with Bloomberg BNA, Livingston said there was “some inevitability” to the EEOC’s decision, and the “next phase” probably will be the commission filing Title VII lawsuits against employers, alleging sexual orientation bias. The EEOC, he said, is now “taking this issue straight on” rather than making “nuanced” arguments.

While Livingston said he personally “abhors the idea of discrimination based on sexual orientation,” he does not find the EEOC’s arguments compelling: “While it may be good social policy, I don’t believe it’s a correct interpretation” of Title VII. He also doesn’t think the decision will be “transformational” in the sense it would require changes in internal anti-discrimination policies, since most large employers already ban sexual orientation bias.