Tuesday, July 21, 2015

EEOC Holds Sexual Orientation Discrimination is Sex Discrimination Under Title VII

A temporary front line manager at a Federal Aviation Administration (FAA) facility in Miami, Florida, alleged he was not promoted to the permanent front line manager position because he was an openly gay man.  The FAA never reached a determination on the merits of the claim, and dismissed the complaint on the grounds it had not been raised in a timely fashion as required by EEOC regulations.  The complainant subsequently appealed the Agency's decision to the EEOC, which held that the complaint was timely.  And while the EEOC also did make a determination on the merits of the claim, they did conclude that Title VII forbids discrimination based on one's sexual orientation because it is a form of "sex" discrimination, which is consistent with an internal memorandum that was recently circulated instructing field offices to process and investigate sexual orientation, transgender, and gender identity claims

In reaching this decision, the EEOC held, "[s]exual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee's sex."  In reaching its conclusion, the Commission held "[d]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," which is language from the landmark Supreme Court case of PriceWaterhouse v. Hopkins, 490 U.S. 228 (1989). 

The EEOC also addressed previous court decisions that rejected the argument that Title VII applied to sexual orientation discrimination because Congress, in 1964, did not intend Title VII to apply to sexual orientation and, therefore, Title VII could not be interpreted to prohibit such discrimination. The EEOC also rejected other court of appeals decisions that relied on the fact that Congress has  debated, but not yet passed, legislation explicitly providing protections for sexual orientation (referring to the Employment Non-Discrimination Act (ENDA)), holding instead:

[t]he idea that congressional action is required (and inaction is therefore instructive in part) rests on the notion that protection against sexual orientation discrimination under Title VII would create a new class of covered persons.  But analogous case law confirms this is not true.  When courts held that Title VII protected persons who were discriminated against because of their relationships with persons of another race, the courts did not thereby create a new protected class of "people in interracial relationships."

The EEOC referring to associational discrimination.  A very interesting decision and it may be nigh time for the U.S. Supreme Court to address the issue if ENDA continues to be shelved in Congress.

The case is Complainant v. Foxx, E.E.O.C., Appeal No. 0120133080 (July 16, 2015).

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