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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 (www.eeoc.gov) 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.