EEOC Rules Title VII Prohibits Employment Discrimination On the Basis of Sexual Orientation

On July 15, 2015, the Equal Employment Opportunity Commission (“EEOC”) ruled for the first time that Title VII of the 1964 Civil Rights Act (“Title VII”) extends to and prohibits employment discrimination on the basis of sexual orientation. In Complainant v. Foxx, E.E.O.C., Appeal No. 0120133080, 7/15/2015, the EEOC specifically held, “[W]e . . .conclude that allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex.”

In this matter the Complainant is a temporary worker for the Federal Aviation Agency (“FAA”) and alleges he was not selected for a full-time position with the FAA because he is gay. While the EEOC’s ruling does not rule on the merits of the case, the ruling addresses the issue of whether the EEOC has jurisdiction over a claim of sexual orientation discrimination. In the past, it has been accepted that Title VII did not extend to claims of sexual orientation discrimination as “sexual orientation” was not specifically listed in the statute or in the legislative history. However, the EEOC has decided here that Title VII does extend to sexual orientation discrimination as a form of sex discrimination.

The EEOC has come to its ruling based on three arguments. First, the EEOC ruled sexual orientation discrimination is sex based because it is “premised on sex-based preferences, assumptions, expectations, stereotypes, or norms.” Second, the EEOC determined sexual orientation discrimination is sex discrimination because it is “relational discrimination” because it entails treating a male employee who loves men differently than a man who loves women. The EEOC supported this argument by noting that courts regularly apply this notion of “relational discrimination” in race discrimination cases. Third, the EEOC concluded sexual orientation discrimination is sex discrimination because it calls for one to rely upon gender stereotypes regarding how a man or women should act. In relying on such stereotypes, the employer would be enforcing “heterosexuality defined gender norms.”

While the EEOC’s new ruling does not bind federal courts, this ruling will likely spur increased number of charges of discrimination filed against employers for discrimination on the basis of sexual orientation. In addition, the decision provides employees a road map to argue the expansion of Title VII protections to cover sexual orientation discrimination as merely a form of sex discrimination in federal courts. Employers should take actions to acquaint themselves with issues regarding sexual orientation discrimination to avoid potential liability.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for almost sixty years, and are available to discuss these issues and others.  As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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