EEOC Recognizes Sexual Orientation Discrimination Claims Under Title VII

By: Megan J. Muoio, July 24, 2015

On July 16, 2015, the U.S. Equal Employment Opportunity Commission (EEOC) issued a decision affirming that it considers sexual orientation to be covered by Title VII of the Civil Rights Act of 1964’s prohibitions against discrimination on the basis of sex. The decision, which was made 3-2 in an appeal brought by an employee of the Federal Aviation Administration who claimed that he was denied a promotion because he was gay, sets up a conflict between the EEOC and certain federal courts.

Title VII states that it is an unlawful employment practice “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” While this section indisputably prohibits employment decisions made because of an employee’s sex (commonly interpreted by the EEOC and the federal courts as the employee’s gender), it has not been applied to employment decisions based on an employee’s sexual orientation. While various state and local laws prohibit discrimination in employment on the basis of sexual orientation, there is no such analogous provision in the federal Civil Rights Act. Federal courts have traditionally held that Title VII contains no explicit reference to sexual orientation, which reflects Congress’s intent not to extend Title VII’s employment protections to gay, lesbian, and bisexual employees.

Despite the fact that the EEOC itself has previously held that Title VII does not include sexual orientation, the EEOC’s decision marks a turnaround in the agency’s interpretation of Title VII. In the decision issued on July 16^th, the EEOC held that there was sufficient support for its new position, which it claims has “developed over time.” The EEOC argued that discrimination on the basis of sexual orientation is essentially discrimination on the basis of one’s sex. By way of illustration, the EEOC described the situation of a heterosexual male employee versus a homosexual male employee: if the homosexual male employee was fired because he displayed a picture of his partner, who is a man, the employment decision would technically be based on gender since the employer would be discriminating against the male employee for not having a female significant other. This rationale tracks the EEOC’s previous holdings that sex and sex stereotyping are both covered by Title VII, meaning that discrimination against an employee who is a woman and discrimination against a man who does not express his gender in a typical fashion (here, by engaging in a homosexual relationship) are both prohibited under Title VII’s provision against sex discrimination.

The EEOC also argued that it has previously held that discrimination based on one’s association with a protected class can been read into the provisions of Title VII, even though these associations are not included in the plain text of the statute. For example, the EEOC has held (and the federal courts subsequently recognized) that a person who has been discriminated against on the basis of a relationship or friendship with a person in a protected class, such as race, would be entitled to Title VII’s protections against discrimination on the basis of race. The EEOC analogized the association argument to sexual orientation, and found that employees who are discriminated against on the basis of their sexual orientation are essentially discriminated against because they associate with or engage in relationships with members of a particular sex.

This decision by the EEOC is non-binding on the federal courts, many of which will disregard the EEOC’s decision and continue to deny Title VII protection for claims of discrimination on the basis of sexual orientation. If enough circuit courts of appeal follow the EEOC’s decision, however, a circuit court split could result. In such a circumstance, the dispute could end up before the Supreme Court, unless the issue is resolved by federal legislation clarifying the terms of Title VII with respect to sexual orientation first. Recently, with the attention given to gay rights in the wake of the Supreme Court decision legalizing gay marriage nationwide, increased attention has been paid to the proposed Employment Non-Discrimination Act (ENDA), which has been proposed in Congress as an amendment to the Civil Rights Act of 1964 since 1974 and would prohibit discrimination on the basis of sexual orientation in employment. Although ENDA has not been passed by Congress, it will continue to be proposed in the future and it is anticipated that increased protections for LGBT individuals may result from the Supreme Court’s recent decision.