Sexual Orientation Discrimination May Be Unlawful Under Title VII

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In July, 2012 a federal air traffic controller learned that he had been denied a promotion. He believed that he had been denied promotion because of his sexual orientation; so in August, 2012 he contacted an EEOC counselor.  Thereafter, he filed a formal complaint with the U.S Department of Transportation’s Federal Aviation Administration in December 2012.  His complaint alleged that he had been the victim of discrimination on the basis of sex.  The controller claimed that the promotion was denied because he is gay, and therefore amounts to discrimination against him based on his sexual orientation, and his gender. He claimed that he was excluded from the promotion because his supervisor, who had been involved in the selection process, had made several negative comments about his sexual orientation, comments which included telling him that he was “a distraction in the radar room” because he had mentioned his partner. The agency dismissed his complaint as untimely, finding that more than 45 days had elapsed between the event giving rise to the claim and the filing of the complaint in December, 2012. The agency did not rule on the merits of the complaint.

On July 16, 2015, the EEOC reversed the agency’s dismissal.  The EEOC first had to deal with the claim that the complaint was untimely.  Accordingly, the EEOC first determined that the complaint was timely because the controller “could only reasonably have suspected that discrimination occurred after he learned he was not selected for [promotion in July 2012],” and that initial contact with an EEO counselor in August 2012 was sufficient to avoid being time-barred.  Having traversed the timing issue, the EEOC then focused on the substance of the controller’s claims finding that his “allegations of discrimination on the basis of his sexual orientation state a claim of discrimination on the basis of sex within the meaning of Title VII.”

The EEOC’s decision acknowledged that Title VII does not explicitly list “sexual orientation” as a basis for employment discrimination claims.  The EEOC’s analysis, however, determined that because “as any other Title VII case involving allegations of sex discrimination,” the inquiry in a sexual orientation claim is whether an employer has “‘relied on sex-based consideration’ or ‘take[n] gender into account’ when taking the challenged employment action.” The EEOC therefore ruled “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.”  Accordingly, based on this decision, Title VII was intended to cover “sexual orientation” claims.

The EEOC’s ruling provided significant support and explanation for the decision.  The EEOC noted that, “discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. ‘Sexual orientation’ as a concept cannot be defined or understood without reference to sex.”  As a result, “sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”  The EEOC also found that “sexual orientation discrimination is also sex discrimination because it is associational discrimination on the basis of sex. That is, an employee alleging discrimination on the basis of sexual orientation is alleging that his or her employer took his or her sex into account by treating him or her differently for associating with a person of the same sex.”  Finally, the EEOC explained that “sexual orientation discrimination also is sex discrimination because it necessarily involves discrimination based on gender stereotypes.”

Based on this analysis, the EEOC set forth a standard by which sexual orientation discrimination claims could be set forth under Title VII.  Based on the EEOC’s ruling, a complaining party must prove that an adverse employment action met the following criteria:

  • “involved treatment that would not have occurred but for the individual’s sex”;
  • “was based on the sex of the person(s) the individual associates with”; and/or
  • “was premised on the fundamental sex stereotype, norm, or expectation that individuals should be attracted only to those of the opposite sex.”

As a result of the EEOC’s decision, sexual orientation discrimination claims might be sustainable as sex discrimination claims under Title VII.  While the EEOC’s ruling is clear and unequivocal, the EEOC’s decision does not immediately resolve this issue for private employers.  While courts generally give deference to decisions by the EEOC, courts are not required to follow the EEOC’s decisions or guidance.  As a result, EEOC decisions at best represent tenuous precedents, ultimately the only binding decisions come from the various Circuit Courts of Appeal.

Currently there are multiple precedents, including decisions within the federal courts of appeal, which hold that it is not unlawful under Title VII for employers to discriminate against workers on the basis of sexual orientation.  While the EEOC’s decision is not binding, it is influential.  When considered together with recent Supreme Court decisions on same sex marriage, the EEOC’s decision may provide the foundation for a similar decision from a federal circuit court of appeal.

Scott M. Plamondon, Attorney at Law  |  Weintraub Tobin