United States: EEOC Rules That Existing Federal Law Prohibits Employment Discrimination Based On Sexual Orientation

In a landmark ruling on July 15, 2015 in _____ v. Foxx, EEOC Appeal No. 2012-24738–FAA-03 (July 15, 2015), the federal Equal Employment Opportunity Commission ("EEOC') held for the first time that Title VII extends to claims of employment discrimination based on sexual orientation.

Specifically, the EEOC held that sexual orientation discrimination is per se sex discrimination, stating that: "We ...conclude that allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex." Foxx at pg. 14.

Background

While the EEOC has yet to rule on the merits of the sexual orientation discrimination alleged in the Charge, its ruling is significant because it forcefully sets forth an expansive view of Title VII that protects employees (both homosexual and heterosexual) from workplace discrimination, and relies on existing Title VII authority to do so. To date, Federal Courts have been largely reluctant to apply Title VII to claims of sexual orientation discrimination. In the administrative context, and if Courts begin to adopt the reasoning of the EEOC, the ruling can significantly improve the workplace protections of LGB (Lesbian, Gay and Bisexual) employees because federal law does not explicitly protect workers based on sexual orientation, and an overwhelming number of states do not include sexual orientation as a protected class in state anti-discrimination statutes.

EEOC Administrative Decision

Complainant in the case is a temporary worker for the Federal Aviation Agency (the "FAA"). He alleges that he was not selected for a permanent position at the FAA because he is gay. He further alleges that his supervisor repeatedly made homophobic comments about him.

Complainant's EEO complaint was first evaluated through the FAA's administrative EEO process, resulting in a Final Agency Decision from the EEOC denying the claim. Complainant appealed, and the administrative decision addressed two issues, one relevant here: (1) whether the charge was filed timely (the EEOC determined it was); and (2) whether the EEOC had jurisdiction over a claim of sexual orientation discrimination.

Traditionally, it has been excepted that Title VII does not extend to claims of sexual orientation discrimination as "sexual orientation" is not listed anywhere in the statute or its underlying legislative history. However, the EEOC held differently here. In holding that allegations of sexual orientation state an actionable claim under Title VII, the EEOC opined that while Title VII does not expressly list "sexual orientation" as a prohibited bases for discrimination, such discrimination was prohibited as a form of sex discrimination.

The EEOC had several bases for the decision. First, it noted that sexual orientation discrimination is sex-based because it is "premised on sex-based preferences, assumptions, expectations, stereotypes, or norms." Second, the EEOC opined that sexual orientation discrimination is sex-discrimination because it is "relational discrimination," in that it involves treating a male employee who loves a man differently than a male employee who loves a woman, noting that courts regularly have applied this notion of relation discrimination in the race discrimination context. Third, the EEOC determined that discrimination based on sexual orientation was sex discrimination because it relies on gender stereotypes as to how "real men" and "real women" should behave, and in so doing seeks to "enforce heterosexuality defined gender norms."

The EEOC also attempted to pre-empt the anticipated criticism of its expansive view of Title VII. It cites the Supreme Court's decision in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), for the proposition that even if Congress did not intend Title VII to apply to this type of claim "statutory prohibitions often go beyond the principal evil [they were passed to combat] to cover reasonably comparable evils." The EEOC goes on to note that it is no matter that since the dawn of the Clinton administration in the early 1990s, Congress has been debating the extension of federal anti-discrimination legislation to LGB individuals through the oft-proposed, but never passed, Employment Non-Discrimination Act ("ENDA"). The EEOC reasoned that this Congressional inaction may simply be the result of a recognition that Federal law already covers such claims. For support, the EEOC noted that the creation of a new protected class is not required to extend protections to individuals claiming sexual orientation discrimination, given that in its view claims of sexual orientation discrimination were simply claims of sex discrimination — a category expressly found in Title VII.

Implications

While the EEOC had been pushing toward this decision with administrative guidance addressing coverage under Title VII for LGB individuals, the significance of this new ruling from the EEOC cannot be understated. In ruling that employees may state a claim for sexual orientation discrimination as a form of "sex" discrimination under Title VII, the EEOC explicitly issued a holding that is contrary to certain federal court rulings interpreting Title VII. Going forward, it is expected that the EEOC's decision will result in an increased number of charges of discrimination filed and investigated based on sexual orientation. Moreover, given the EEOC's key objectives in its Strategic Plan for 2012-2016 to ensure that members of the public understand their rights as well as the recourse available to them, employers can expect that the EEOC will take additional measures to educate future and potential claimants regarding this ruling.

While the EEOC's ruling is not binding on federal courts, employers should be mindful that any allegations concerning sexual orientation discrimination – to the extent they can be interpreted to fall within the EEOC's interpretation of "sex" – may expose them to liability, in addition to any protections that may exist under state or local laws. Certainly, the extensive rationale provided by the EEOC in this decision was clearly intended to serve as a road map for individuals hoping to press their claims of sexual orientation discrimination at the administrative level, and in Federal Court. The decision sets forth extensive references to case law that individuals can cite in support of this expansive view of Title VII. Whether, the line of argument advanced by the EEOC will be adopted by Federal Courts remains an open question. To date, Federal Courts have by an overwhelming margin been unwilling to allow such claims to survive the motion to dismiss stage. However, given that the EEOC's decision comes just weeks after the seminal gay-marriage victory in Obergefell v Hodges, courts may be more open to revisiting this issue and more generally the question of using courts, not the legislature, to advance LGB rights. That being said, many Federal Courts will likely remain opposed to a more expansive reading of Title VII. Further, some jurists may cite the Supreme Court's recent decision in Hobby Lobby v Burwell, to note that even if Title VII can be read to encompass LGB individuals, closely held corporations with religious objections to homosexuality can still permissibly discriminate against LGB individuals.

Based on these developments, and this evolving area of law, employers must familiarize themselves with issues related to sexual orientation to avoid potential liability. Employers may wish consider the following:

  • Revisit Non-Discrimination Policies: Although the EEOC's decision is not binding and there is no federal law which explicitly protects LGB employees from discrimination, employers should consider revising internal equal employment, non-discrimination and anti-harassment policies to include sexual orientation as protected categories.
  • Conduct Training: Employers should also make their managers and employees more sensitive to sexual orientation by incorporating these topics in EEO and harassment training programs.
  • Health Insurance and Benefits: Employers may also consider whether changes can be made to its health benefits to extend such coverage to same-sex spouses and/or domestic partners.

In sum, employers should increase their awareness of and sensitivity to issues related to sexual orientation in the workplace. Employers must be aware that LGB individuals may be protected under federal law in addition to relevant state or local laws, and that any allegations concerning sexual orientation discrimination require the same analysis, investigation and response as a traditional sex discrimination complaint. Finally, employers must evaluate their internal policies, practices and procedures with an eye toward sexual orientation issues to avoid potential complaints and liability.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.