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EEOC: Sexual orientation discrimination is Title VII discrimination based on sex

By Kathleen Kapusta, J.D.

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, said the EEOC. “Interpreting the sex discrimination prohibition of Title VII to exclude coverage of lesbian, gay, or bisexual individuals who have experienced discrimination on the basis of sex inserts a limitation into the text that Congress has not included,” the Commission declared in concluding that an air traffic control specialist who alleged that he was not selected for a permanent position with the Federal Aviation Administration because he is gay stated a claim of discrimination on the basis of sex (Doe v. Foxx, July 15, 2015).

The complainant, who was working as a temporary front line manager (FLM), alleged that the Federal Aviation Administration discriminated against him based on his sexual orientation and retaliated against him for prior protected EEO activity when it did not select him for a permanent FLM position. Although he did not officially apply for the job, he claimed that all temporary FLMs were automatically considered and that management knew of his desire to obtain the position.

Distraction. In December 2012, he filed a formal EEO complaint. He claimed that his supervisor, who was involved in the selection process, made several negative comments about his sexual orientation, including stating “We don’t need to hear about that gay stuff,” after the complainant mentioned that he and his partner attended Mardi Gras and that he told the complainant on a number of occasions that he was “distraction in the radar room” when he mentioned his male partner.

FAD. The FAA accepted the complaint for investigation and notified the complainant that he could request a hearing before an EEOC administrative judge or an immediate final decision by it. The complainant requested an immediate final decision and in July 2013, the FAA issued a Final Agency Decision (FAD) dismissing the complaint because it had not been raised in a timely fashion with an EEO counselor. The complainant then appealed the decision to the EEOC.

Timeliness. Although the FAA considered the date of the adverse action to be October 2010, when the complainant assumed his temporary FLM position, and thus knew he would be returned to his former positon at the end of his appointment, the EEOC found he had no reason to know or suspect at the time of his temporary appointment that he subsequently would not be selected for a permanent FLM position, let alone for discriminatory reasons. Observing that the standard it applies to determine timeliness is when a complainant reasonably should have first suspected discrimination, which in this case occurred after the complainant learned he was not selected for the permanent position in July 2012, the Commission found that his contact with an EEO Counselor in August 2012 was timely.

EEOC jurisdiction. The EEOC next observed that in its FAD, the FAA indicated it would process the claim only under its internal procedures concerning sexual orientation discrimination and not through the 29 C.F.R. Part 1614 EEO complaint process. The FAA erred in this regard, the Commission stated.

Title VII requires that “[a]ll personnel actions affecting [federal] employees or applicants for employment . . . shall be made free from any discrimination based on . . . sex.” This provision is analogous to the section of Title VII governing employment discrimination in the private sector, said the Commission. Observing that Title VII’s prohibition of sex discrimination means that employers may not rely on sex-based considerations or take gender into account when making employment decisions, the Commission stated that this applies equally in claims brought by lesbian, gay, and bisexual individuals under Title VII.

Sex-based considerations. Noting that sexual orientation in not explicitly listed in Title VII as a prohibited basis for employment actions, the EEOC observed that the question for purposes of Title VII coverage of such a claim is the same as any other Title VII case involving sex discrimination allegations—whether the agency has “relied on sex-based considerations” or taken gender into account when taking the challenged employment action.

Here, the complainant alleged that the agency relied on sex-based considerations and took his sex into account in not selecting him for the permanent position. He therefore stated a claim for sex discrimination. Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms, observed the Commission, noting that “sexual orientation” as a concept cannot be defined or understood without reference to sex.

Pointing out that a man is referred to as “gay” if he is physically and/or emotionally attracted to another man, a woman is referred to as “lesbian” if she is physically and/or emotionally attracted to another woman, and someone is referred to as “heterosexual” or “straight” if he or she is physically and/or emotionally attracted to someone of the opposite-sex, the Commission found that it follows that sexual orientation is inseparable from and inescapably linked to sex. Therefore, allegations of sexual orientation discrimination involve sex-based considerations.

Less favorable treatment. In addition, sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex, said the Commission, providing the example of an employer suspending a lesbian employee for displaying a photo of her female spouse while not disciplining a male employee for displaying a photo of his female spouse. Here, the Commission explained, the lesbian employee can allege that her employer took an adverse action against her that it would not have taken had she been male.

Associational discrimination. Sexual orientation discrimination is also sex discrimination because it is associational discrimination, the Commission stated, explaining 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. Noting that in applying Title VII’s prohibition on race discrimination, courts and the EEOC have consistently found that the statute prohibits race-based associational discrimination, the Commission observed that this analysis is not limited to the context of race discrimination as Title VII, on its face, treats each of the enumerated categories—race, color, religion, sex, and national origin—exactly the same. Therefore, Title VII similarly prohibits employers from treating an employee or applicant differently than other employees or applicants based on the fact that such individuals are in a same-sex marriage or because the employee has a personal association with someone of a particular sex.

Gender stereotypes. And, said the Commission citing Price Waterhouse, sexual orientation discrimination is also sex discrimination because it necessarily involves discrimination based on gender stereotypes. In the wake of Price Waterhouse, courts and the EEOC have recognized that lesbian, gay, and bisexual individuals can bring claims of gender stereotyping under Title VII if they show they were treated adversely because they were viewed—based on their appearance, mannerisms, or conduct—as insufficiently “masculine” or “feminine.” Since Price Waterhouse, the Commission and a number of courts have concluded that discrimination against people who are lesbian, gay, or bisexual on the basis of gender stereotypes often involves far more than assumptions about overt masculine or feminine behavior. Rather, sexual orientation discrimination is often motivated by a desire to enforce heterosexually-defined gender norms.

Statutory language. Noting that in the past, courts have gone to great lengths to distinguish adverse employment actions based on sex from such actions based on sexual orientation, the Commission observed that the “stated justification for such intricate parsing of language” has been the conclusion that Title VII does not prohibit discrimination based on sexual orientation. While Congress may not have envisioned the application of Title VII to sexual orientation, the Commission, citing the Supreme Court’s decision in Oncale v. Sundowner Offshore Services, Inc., stated that “statutory prohibitions often go beyond the principle evil [they were passed to combat] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Here, the Commission found that nothing in the text of Title VII suggests that Congress intended to confine the statute’s benefits to heterosexual employees alone.

As to the contention that congressional action is required because protection against sexual orientation discrimination under Title VII would create a new class of covered persons, the Commission looked to analogous case law to conclude this was not true. For example, when courts held that Title VII protected persons who were discriminated against because of relationships with persons of another race, they did not create a new protected class of “people in interracial relationships.” Nor did the Supreme Court create a new protected class of “masculine women” when it held that Title VII protects persons discriminated against because of gender stereotypes. Rather, these courts simply applied existing Title VII principles to these situations, said the Commission, noting that the “courts have gone where the principles of Title VII have directed.”

Thus, applying the words of Title VII, the Commission held that the complainant’s allegations of sexual orientation discrimination stated a claim of discrimination based on sex. It further concluded that the allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex.

Finally, the Commission stated that agencies should treat sexual orientation discrimination claims as complaints of sex discrimination under Title VII and process such complaints through the ordinary Section 1614 process, as that process is the most appropriate method for resolving these claims. Thus, the Commission remanded the complainant’s claim to the FAA for a determination of its validity on the merits.