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EEOC Rules Sexual Orientation-Based Discrimination is Sex Discrimination Under Title VII

Last Thursday, the EEOC issued a groundbreaking decision that held, in clear and unequivocal language, that claims of discrimination based on sexual orientation implicitly state a claim of sex discrimination under Title VII. See Complainant v. Foxx, EEOC DOC 0120133080, 2015 WL 4397641, at *10 (July 16, 2015). This decision comes on the heels of the Supreme Court's landmark decision granting same-sex couples the right to marry under the Fourteenth Amendment. Obergefell v. Hodges, 135 S. Ct. 2584, 2608 (2015).

Written with Michael Lynch, Outten & Golden LLP Law Clerk

While many view the EEOC's ruling as an important step towards providing new protections for LGBTQ employees, the decision is not binding on courts. And, as noted in the EEOC's decision, federal courts have traditionally refused to extend Title VII protections to plaintiffs asserting claims of sexual orientation discrimination. See Complainant, 2015 WL 4397641, at *8. It is unclear to what extent courts will look to it as instructive.

In Complainant v. Foxx, the unnamed Complainant alleged that he was denied a promotion because he was gay. Id at *2. The Complainant was a temporary supervisory air traffic control specialist for the Department of Transportation, Federal Aviation Administration, and was not selected to fill an opening for a permanent position as a front line manager. Id. at *1. Throughout the course of his employment, whenever the Complainant mentioned his male partner, his supervisor made comments such as: "We don't need to hear about that gay stuff," and that by mentioning his partner he was "a distraction in the radar room." Id. at *2. The Complainant filed a formal EEO complaint, and after the Agency issued its Final Agency Decision (FAD) dismissing the claim as untimely, the Complainant appealed to the EEOC. Id.

On appeal, the EEOC reversed the Agency's decision and found that the Complainant's claim was filed in a timely fashion. Id. at *4. The EEOC also held that the Complainant had successfully stated a claim of sex discrimination under Title VII. Id. at *10. The EEOC found that "sexual orientation is inseparable from and inescapably linked to sex and, Therefore, that allegations of sexual orientation discrimination involve sex-based considerations." Id. at *5. According to the EEOC's reasoning, an employee can show that sexual orientation discrimination amounts to sex discrimination under Title VII in three scenarios: (1) where the discrimination the employee experienced would not have occurred but for the individual's sex; (2) where the discrimination is based on the sex of the person(s) the employee associates with; or (3) where the discrimination was premised on the sex stereotype that individuals should only be attracted to the opposite sex. Id. at *10

Further, the EEOC directly addressed its "earlier and dated" decisions that refused to extend Title VII to claims of sexual orientation discrimination. See id. at *8, n.11. The EEOC stated that "many courts have gone to great lengths to distinguish adverse employment actions based on 'sex' from adverse employment actions based on 'sexual orientation.'" Id. at *9. In countering the proposition that Congress never intended Title VII to apply to sexual orientation, the EEOC explained that Congress also never intended to exclude LGBTQ individuals from the protection from sex discrimination under Title VII. Id. Additionally, the EEOC rejected that the fact that Congress has failed to pass legislation that explicitly protects LGBTQ individuals from workplace discrimination, such as ENDA, should have any bearing on its holding. See id. Citing the U.S. Supreme Court, the EEOC noted that "congressional inaction lacks persuasive significance" and possibly stands for the inference that existing legislation already incorporates the sought after protections. See id (citing Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990)).

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