In a recent decision about an appeal from the U.S. Department of Transportation, the Equal Employment Opportunity Commission (EEOC) left no question it views sexual orientation discrimination as falling within the protections of Title VII of the Civil Rights Act of 1964. The EEOC stated its intent to treat all sexual orientation discrimination as sex discrimination, actionable under Title VII.
On July 15, 2015, the EEOC issued its decision that the Department of Transportation (DOT) had failed to adequately address a sexual orientation claim raised by one of its employees—a supervisory air traffic control specialist in Miami, Florida. The employee claimed that he had not been promoted to front-line manager—a position he held in a temporary capacity for over 2 years—because of his sexual orientation. As evidence for his claim, the employee relied on several negative statements made by a supervisor who was involved in the promotional process. Specifically, the employee claimed his supervisor made derogatory comments about the employee’s male partner and characterized the employee as a “distraction” when he mentioned his male partner in conversation.
The EEOC never addressed the merits of the employee’s claim of sexual orientation discrimination for the simple reason the DOT never reached the merits of the claim. Instead, the DOT dismissed the employee’s claim on the basis that he had failed to contact an EEO counselor within 45 days of accepting the temporary position of front-line manager. The EEOC easily countered this argument by the DOT, logically noting that it was not reasonable to expect the employee to know that he would experience discrimination on the basis of his sexual orientation a full 2 years in the future because the challenged employment action related to the employee’s failure to be promoted to the permanent position of front-line manager. Because the employee reported that act of discrimination within 45 days, his claim was timely.
The EEOC then focused the bulk of its decision on whether Title VII encompassed claims involving sexual-orientation discrimination. This is important because the DOT stated it would only address sexual orientation claims through its internal procedures concerning sexual orientation discrimination and not through the federal regulations controlling equal employment opportunity, found at 29 C.F.R. Part 1614. If Title VII addresses claims involving sexual orientation, then those claims need to be brought through the EEO complaint process. The EEOC determined that the DOT clearly erred in failing to treat the sexual orientation claim in a similar fashion as other Title VII sex-discrimination claims.
Acknowledging that Title VII does not include sexual orientation in its list of protected classes, the EEOC nevertheless determined that it does prohibit sexual orientation discrimination for one simple reason: Sexual orientation discrimination is simply a form of sex discrimination, a class long protected by Title VII. In other words, discriminating against an employee because of his or her sexual orientation is sex discrimination because “it necessarily entails treating an employee less favorably because of the employee’s sex.” For example, not promoting a male employee because he mentions his male partner in conversation discriminates against the employee for being male. A female employee who referred to her male partner would not receive the same adverse employment action. Thus the male employee is treated differently because he is male—a clear violation of Title VII.
Another example (provided by the EEOC in its decision) involves suspending a female employee for displaying a photo of her female spouse on her desk. If a male employee is not similarly suspended for displaying photos of his female spouse, then the employer has engaged in sex discrimination because it has treated the female employee differently from the male employee. Such discrimination falls under the broad category of sex discrimination, even though it could be defined more specifically as sexual orientation discrimination.
The EEOC also based its conclusion on the argument that sexual orientation discrimination involves discrimination for associating with a person of the same sex. Much like race association cases in which courts recognize actionable claims where employees face discrimination because of a personal relationship between the employee and a person of another race, sexual orientation discrimination claims have an association component as well. Because Title VII prohibits discrimination against an employee based on an association with a person of another race, so the EEOC concludes, it also prohibits discrimination against an employee based on the sex of an individual with whom that employee associates.
In addressing arguments that Title VII does not encompass sexual orientation claims, the EEOC states that Congress’ inaction on this issue is not authoritative. The EEOC opines that Congress’ inaction could be due to the fact that it interprets Title VII as already encompassing sexual orientation claims. Additionally, the EEOC argues that it is not creating a new protected class but simply clarifying the types of claims that can be brought as sex discrimination claims—a preexisting protected class.
What does this mean for private-sector employers?
Creating a new protected class or not, the EEOC’s opinion certainly opens up additional avenues for employees who feel they have experienced workplace discrimination. First and foremost, the opinion limits a federal employer’s ability to address claims of sexual orientation discrimination in house. Rather, these claims must now proceed through the EEO channels currently handling race, sex, religion, and national origin claims. Although not binding on private employers, the recent decision communicates the EEOC’s position loud and clear: Employers must treat claims of sexual orientation discrimination in the same manner as other types of discrimination under Title VII.
Responding to an EEOC charge can be a tricky and daunting task, packed with potential pitfalls. Successfully navigating the EEOC process is often the first step towards successfully defending—or even avoiding—a costly employment discrimination lawsuit.
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