The EEOC, for the first time on the federal level, has ruled that discriminating against an employee based on the person’s sexual orientation counts as unlawful sex discrimination under Title VII of the Civil Rights Act.
Gay rights groups hailed the 3-2 EEOC vote on July 16 as a “historic” step. In the ruling, the EEOC said a male air traffic controller who claimed he was denied a job because he is gay can pursue a claim under Title VII. The case is Complainant v. Foxx, EEOC, Appeal No. 0120133080 (July 16, 2015).
The EEOC decision contradicts the rulings of several federal courts, which have said Title VII doesn’t mention sexual orientation among its list of prohibited bases for employment lawsuits, such as age, race or sex.
The EEOC called these earlier court decisions “dated,” saying that, “Sexual orientation discrimination is sex discrimination because it necessarily entails treating employees less favorably because of the employee’s sex ... (and) is premised on sex-based preferences, assumptions, expectations, stereotypes and norms. ‘Sexual Orientation’ as a concept cannot be defined or understood without reference to sex.”
The EEOC based its ruling in part on the U.S. Supreme Court’s 1989 decision in PriceWaterhouse v. Hopkins, which said it was a violation of Title VII to discriminate against an individual for failing to conform to gender-based stereotypes.
For now, the ruling has only a limited impact, according to employment law attorneys Denise M. Visconti and Kyle W. Nageotte of Littler Mendelson. Writing on the firm’s blog, they said, “Because this case arose in the context of federal-sector employment, the decision will be binding on all federal agencies and departments and will have a direct impact on federal government employees.”
However, they wrote, “For the 28 states that lack any explicit state-level protections against discrimination on the basis of sexual orientation, this decision has the potential to have a significant impact on employers with 15 or more employees.”
EEOC rulings on issues like this are persuasive but not binding on federal courts. So this may lead to a split among the federal circuits, which could be resolved by the Supreme Court.