• EEOC Says Sexual Orientation Is Protected By Title VII
  • August 10, 2015
  • Law Firm: Shawe Rosenthal LLP - Baltimore Office
  • In a broad expansion of Title VII, the EEOC recently and boldly asserted in Baldwin v. Dept. of Transp. that sexual orientation discrimination is sex discrimination prohibited by Title VII.

    Facts of the Case: An FAA employee serving as a temporary Front Line Manager (FLM) position was not selected for a permanent FLM position. The employee filed an EEO complaint with the FAA, claiming that he was not selected because he is gay. In support of his claim, he cited several anti-gay comments by his supervisor. The FAA dismissed the employee’s complaint, stating that sexual orientation discrimination is not subject to the government’s EEO process. The employee appealed that decision to the EEOC, in accordance with the applicable EEO procedures.

    The EEOC’s Decision: The EEOC found that the FAA had erred in dismissing the complaint, and that sexual orientation is covered by the EEO process. Prior to this case, however, the EEOC had taken the position sexual orientation itself was not protected by Title VII. In November 2014, it issued a document, "What You Should Know about EEOC and the Enforcement Protections for LGBT Workers." (November 2014 version). In that document, while the EEOC asserted that gender identity discrimination is discrimination on the basis of sex under Title VII, it offered a more limited view of sexual orientation discrimination: "The Commission has ... found that discrimination against lesbian, gay, and bisexual individuals based on sex-stereotypes, such as the belief that men should only date women or that women should only marry men, is discrimination on the basis of sex." (Emphasis added).

    Courts in private sector cases, as well as the EEOC in other federal sector cases, have also consistently found that sexual orientation is not protected by Title VII, except to the extent that sex-stereotypes were involved.

    In Baldwin, however, the EEOC now takes the position that "sexual orientation is inherently a 'sex-based consideration,' and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII." (Emphasis added). In addition to noting that sexual orientation discrimination is often illegally based on sex stereotypes (the EEOC's original, limited position), the EEOC now has added two other reasons as to why sexual orientation discrimination is sex discrimination: (1) "sexual orientation is inseparable from and inescapably linked to sex," and (2) Title VII prohibits discrimination based on an individual's association with someone with a protected characteristic (i.e. "associational discrimination") - in this case, someone of the same sex.

    Following the issuance of Baldwin on July 16, the EEOC is moving quickly to cement this position. As of July 23, 2015, it had revised its “What to Know” document to eliminate the sex-stereotyping limitation. The new version now cites the Baldwin case and states: "The Commission has also held that discrimination against an individual because of that person's sexual orientation is discrimination because of sex and therefore prohibited under Title VII."

    Lessons Learned: Interestingly, the EEOC admits that "Congress may not have envisioned the application of Title VII to these situations." And, in fact, Congress clearly believes that sexual orientation is not covered by Title VII, as it has repeatedly over the past 20 years considered and rejected the Employment Non-Discrimination Act, which would prohibit discrimination on the basis of sexual orientation. The EEOC may have exceeded its authority in seeking to expand to scope of Title VII, and its aggressive position may not be supported by the courts.
    Nonetheless, employers should keep in mind that the EEOC will receive and investigate charges alleging sexual orientation discrimination, even if a court later determines that such claims are not tenable in any subsequent lawsuit.