248-409-1900 dburke@mi-worklaw.com

By:  Rob N. Dare – 7/30/15

On July 15, 2015, for the first time, the Equal Employment Opportunity Commission (“EEOC”), the agency charged with enforcing federal workplace discrimination laws, ruled that Title VII extends to claims of employment discrimination based on sexual orientation. In _____ [name of charging party kept secret] v. Foxx, EEOC Appeal No. 2012-24738–FAA-03 (July 15, 2015), the Complainant, a former temporary worker at the Federal Aviation Agency (“FAA”), alleged that he was not selected for a permanent position at the FAA because he is gay. Further, he alleged that his supervisors repeatedly made homophobic comments about him.

Title VII makes it unlawful for a covered employer to “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Historically, federal courts have consistently held that Title VII does not extend to sexual orientation discrimination claims because “sexual orientation” is not listed anywhere in the statute or even mentioned in its legislative history. However, the EEOC saw it differently. Reasoning that such discrimination is a prohibited form of sex discrimination (which is listed), the EEOC opined that allegations of sexual orientation indeed create a viable claim under Title VII.

The EEOC based its decision on three rationales. First, the Commission concluded that sexual orientation is inherently a “sex-based consideration,” explaining that “[d]iscrimination 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.” Second, the EEOC opined that sexual orientation discrimination is sex discrimination because it is “associational discrimination” on the basis of sex. Noting that courts have applied this notion of “associational discrimination” in race discrimination contexts, the EEOC explained that “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.” Third, according to the EEOC, sexual orientation discrimination also is sex discrimination because it necessarily involves discrimination on gender stereotypes. That is, it involves relying on gender stereotypes as to how “real men” and “real women” should behave, seeking to “enforce heterosexuality defined gender norms” – conduct that the U.S. Supreme Court has ruled is unlawful.

The EEOC also attempts to rebut anticipated criticism of its decision by, first, pointing out that the Supreme Court has held that even if Congress did not intend for 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.” Next, the EEOC opined that Congress is not required to pass legislation to explicitly provide for protection for sexual orientation because it already exists within the statute (sex discrimination) and thus, there is not a new class of covered persons under Title VII.

Although the EEOC’s ruling does not constitute binding law, this decision is unquestionably significant for three reasons: (1) the EEOC had never before held that Title VII extends to sexual orientation discrimination; (2) the holding is contrary to many federal court rulings interpreting Title VII; (3) it lays the foundation for an increased number of charges of discrimination filed and investigated based on sexual orientation.

Now that plaintiffs are armed with a road map for their arguments, employers are likely to see an uptick in discrimination charges, claiming sexual orientation discrimination as discrimination on the basis of sex – especially given the momentum provided by the Supreme Court’s recent decision to strike down bans on same-sex marriage as unconstitutional.

The EEOC’s perspective places employers in a bit of a dilemma. As noted, the overwhelming majority of federal courts hold that sexual orientation is not a protected classification under federal law and accordingly, they may continue to find that an extension of Title VII requires Congressional action. However, “gender stereotyping” has been a recognized species of sex discrimination for years. So, should employers revise their non-discrimination policies to include sexual orientation as a protected category? Certainly, many employers — especially those operating in one of the 21 states that prohibit discrimination on the basis of sexual orientation or gender identity — have already included sexual orientation in their policies.   However, changing the policy will make it more difficult to argue that there is no legal duty to avoid discrimination on that basis.

One thing is certain: It is important for employers to ensure that managers and supervisors are cognizant of, and sensitive to, sexual orientation discrimination and are appropriately trained to handle issues, complaints, etc. This is especially so, because some federal harassment cases say that an employer may have no defense to hostile environment claims if the company has not trained its employees on the topic.

On a related note, and with particular respect to the Supreme Court’s same-sex marriage ruling, employers should recognize that marital status discrimination is a cause of action in Michigan (but not under Title VII) , and accordingly, a Michigan employer who fails to recognize a same-sex marriage (for cheap AARP burial insurance, health insurance, benefits, etc.) acts at its peril.