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Posts Tagged ‘#sexualorientation’

EEOC Continues to Push For Protection on the Basis of Sexual Orientation

Posted on: July 14th, 2016

By:  Amanda Hall

We’ve written on the EEOC’s push to include sexual orientation discrimination within the ambit of Title VII before (July 24, 2015).  Last summer, the EEOC determined that sexual orientation is a concept that “cannot be defined or understood without reference to sex” and that it is covered by Title VII because “it necessarily involves discrimination based on gender stereotypes,” which the Supreme Court held to be unlawful in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).  See Baldwin v. Foxx, Appeal No. 0120133080 (July 15, 2015).

Since then, the EEOC has continued to advance this position, most recently entering into a consent decree to resolve one of the first two cases it filed alleging that sexual orientation discrimination violates Title VII.  As part of the June 23, 2016, consent decree, the EEOC is requiring the employer at issue, Pallet Cos. d/b/a IFCO Systems, to institute company-wide LGBT training to its managers.  The underlying case involved the EEOC suing on behalf of a Lesbian forklift operator at IFCO’s Baltimore facility.  The allegations in the case included claims of daily harassment as a result of the employee’s sexual orientation, including comments such as “I want you to turn back into a woman,” “I want you to like men again,” and “[a]re you a girl or a man?”

At present, the federal courts (in contrast to the EEOC) that have addressed this issue have differentiated between sexual orientation discrimination (which they have found is not covered under Title VII) and discrimination based upon sex stereotyping (which is covered under Title VII).  It remains to be seen, however, whether the EEOC’s continued determination to place sexual orientation discrimination within the realm of Title VII will ultimately erase this line and eliminate this distinction.

Houston Voters Reject Sexual Orientation and Gender Identity Antidiscrimination Law

Posted on: November 18th, 2015

By: Tim Holdsworth

In one of the most closely watched votes on Election Day 2015, citizens of Houston overwhelmingly voted to repeal the Houston Equal Rights Ordinance (“HERO”).  Passed by the city council last year, the ordinance augmented federal and state laws by prohibiting discrimination against employees on the basis of sexual orientation or transgender status.  The HERO referendum drew the attention of numerous high-profile individuals.  Those supporting the ordinance included President Obama, Hillary Clinton, and actress Sally Field.  Those opposing it included Texas Governor Greg Abbott, Lieutenant Governor Dan Patrick, and former Houston Astro Lance Berkman.  Berkman, whom you may remember as a star on Astros teams during the last decade and whose baseball cards are hopefully collecting value in my parents’ basement, even shot a divisive commercial in opposition to the ordinance.

Whatever your view on HERO or the vote’s outcome, employers should be aware that Houston voters’ rejection of HERO runs against the current trend in employment law.  A number of states prohibit discrimination on the basis of sexual orientation and gender identity.  So, too, do many cities, including several major cities in Texas.  In fact, while Georgia does not prohibit discrimination on these bases, the relevant city of Atlanta ordinance on private employment enumerates both sexual orientation and gender identity as protected classes.

Additionally, the EEOC takes the position, and held in a recent ruling more thoroughly discussed here, that Title VII’s sex discrimination provision prohibits discrimination against employees on the basis of sexual orientation and gender identity.  Some federal courts have followed the EEOC’s position and allowed sex discrimination suits to be brought on these bases.  Furthermore, despite opponents of HERO arguing that the ordinance would potentially endanger women and children to sexual predators because it allowed men dressed as women to enter women’s bathrooms, we have already discussed the EEOC’s ruling that denying a transgender employee the right to use a bathroom that is consistent with their gender identity constitutes sex discrimination under federal law.

Employers should be modifying their employment policies as necessary to comply with any local, state, or federal legislation in this trending area of the law.  In fact, the EEOC declared that “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions ” is an “enforcement priority for FY2013-2016.”

Please contact us with any questions you may have about these issues or their effect on your employment policies.



EEOC Decides Sex Discrimination Protection Includes Sexual Orientation

Posted on: July 24th, 2015

By: Amanda K. Hall

Title VII of the Civil Rights Act of 1964 does not specifically prohibit discrimination on the basis of sexual orientation.  In addition, although some state and local laws prohibit discrimination based on sexual orientation, federal case law throughout the circuits has generally held that sexual orientation does not constitute a protected class.  In a landmark July 15, 2015 ruling, however, the U.S. Equal Employment Opportunity Commission (“EEOC”) held that Title VII’s prohibition of employment discrimination on the basis of sex extends to claims based upon sexual orientation.

In Baldwin v. Foxx, Appeal No. 0120133080, the Complainant, who worked for the FAA as a Supervisory Air Traffic Control Specialist in Miami, alleged that he was not selected for a permanent Front Line Manager position because he is gay.  In support of his argument, the Complainant alleged that his supervisor, who was allegedly involved in the selection process, made several derogatory comments regarding his sexual orientation.

Because the FAA is a federal agency, the Complainant initially brought his complaint through the FAA’s administrative EEO process.  On appeal from a Final Agency Decision denying the Complainant’s claim, the EEOC issued the instant determination, specifically concluding that the “Complainant’s allegations of discrimination on the basis of his sexual orientation state[d] a claim of discrimination on the basis of sex within the meaning of Title VII.”

In support of its decision, the EEOC stated that “sexual orientation” is a concept that “cannot be defined or understood without reference to sex.”  Further, noting that courts have already consistently prohibited “discrimination based on an employee’s association with a person of another race,” the EEOC stated that sexual orientation discrimination is similarly prohibited “because it is associational discrimination on the basis of sex.”  Finally, the EEOC concluded that sexual orientation discrimination falls within the ambit of Title VII because “it necessarily involves discrimination based on gender stereotypes,” which the Supreme Court held to be unlawful in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

Baldwin adds to the EEOC’s earlier determination in Macy v. Dep’t of Justice, Appeal No. 0120120821 (April 20, 2012), that gender identity discrimination is discrimination because of sex and is therefore prohibited under Title VII.  Indeed, the EEOC’s website ( now provides that the Commission “interprets [Title VII’s] sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity.”

In light of the foregoing, it seems clear that the EEOC will aggressively take the position at the charge level that “gender” equates with “sexual orientation” for purposes of Title VII statutory protection.  At present, the EEOC’s new position has not been expressly challenged in the courts, but it most certainly will be when cases eventually move from the administrative stage to federal litigation.  The EEOC likely will face a very uphill challenge in re-interpreting Title VII given the weight of the judicial authority that previously considered the issue and found that sexual orientation protection was outside the scope of the statutory definition of “gender.”  Indeed, Congress has pending before it, and has for several years, the proposed Employee Non-Discrimination Act (“EDNA”), which would amend Title VII to expressly include full LGBT (Lesbian, Gay, Bisexual, Transgender) rights as a protected class.  The fact that Congress apparently believes that Title VII does not yet include sexual orientation protection has been noted by commentators and the courts in concluding that Congress did not intend to include sexual orientation protection when Title VII was passed in 1964.

Still, in the meantime, given the EEOC’s interpretation and enforcement position, employers are faced with the possibility that Title VII could be interpreted to cover sexual orientation.  Likewise, even if the full scope of the EEOC’s position is adopted, it is unclear if it would extend to full LGBT protection, since transgender claims are conceptually distinct.  Thus, employers will have to decide whether to change policies in the meantime to conform with the EEOC’s position or even adopt full LGBT protection, or await the outcome of the inevitable litigation and judicial decisions that will follow.