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Sexual Orientation Discrimination, Title VII and the EEOC

The Equal Employment Opportunity Commission Rules that Sexual Orientation Discrimination Violates Title VII

On July 16, 2015, the Equal Employment Opportunity Commission found in a 3-2 vote that a claim of sexual orientation discrimination is covered by Title VII of the Civil Rights Act of 1964.

In the case before the EEOC, the complainant was a temporary air traffic control specialist with the Federal Aviation Administration (FAA).  He alleged that he was discriminated against on the basis of his sex when he was not selected for a permanent position as a manager due to his sexual orientation.  The complainant’s supervisor, who was involved in the selection process, allegedly made negative comments about the complainant’s sexual orientation.  For example, when the complainant told his supervisor that he attended Mardi Gras in New Orleans, the supervisor stated, “We don’t need to hear about that gay stuff.”  The supervisor also allegedly told the complainant that he was a “distraction in the radar room” when he mentioned his male partner in conversations.

The EEOC concluded that a complaint of sexual orientation discrimination was covered by Title VII because the complainant alleged that his sex was taken into account when the FAA made the employment decision regarding the permanent position.  The EEOC stated that sexual orientation discrimination could not be “defined or understood” without a reference to sex or gender.  Because “sexual orientation” is inherently a “sex-based” consideration, the EEOC reasoned that an allegation of sexual orientation discrimination was therefore an allegation of sex discrimination that is covered by Title VII.  The EEOC also stated that sexual orientation discrimination was sex discrimination under the theory of “association discrimination,” as an employee alleging sexual orientation discrimination is alleging that his or her employer discriminated due to an association with a person of the same sex.  Finally, the EEOC reasoned that sexual orientation discrimination was sex discrimination under Title VII because it involved discrimination based on gender stereotypes.

While the EEOC’s decision is not binding authority on private employers, the ruling is likely to be seen as persuasive by federal courts.  Employers with questions about the implications of the EEOC’s decision should speak to an attorney to evaluate their anti-discrimination and harassment policies.

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