EEOC Evolves on Orientation

Posted by On Wednesday, August 5, 2015

The Equal Employment Opportunity Commission (EEOC) ruled that Title VII was violated when an employee was denied a promotion because of his sexual orientation. The case involved an air traffic control supervisor in Florida, who accused the Federal Aviation Administration (FAA) of not selecting him for a permanent position because he is gay.

Traditionally, Title VII has been interpreted not to cover sexual orientation bias for gays, lesbians, and heterosexuals. This was true unless there was sex-based “gender stereotyping.”

However, in addition to prohibiting gender stereotyping, the EEOC now says Title VII implicitly forbids sexual orientation discrimination.

“[T]he question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. It is not,” the EEOC wrote. “Rather, the question … is the same as any other Title VII case involving allegations of sex discrimination — whether the [employer] has relied on sex-based considerations or taken gender into account when taking the challenged employment action.”

“[W]e conclude 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,” the EEOC stated. “[An employee] alleging that an [employer] took his or her sexual orientation into account in an employment action necessarily alleges that the [employer] took his or her sex into account.”

“Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex,” the EEOC explained. “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.”

Noting that the EEOC’s “own understanding of Title VII’s application to sexual orientation discrimination has developed over time,” the EEOC ordered the case to proceed to determine the FAA’s liability for violating Title VII. [Baldwin v. Foxx (EEOC 2015) no. 2012-24738]

Note: In 2012, the EEOC applied Title VII’s rule against sex bias in a case involving discrimination against a transgender employee.

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