EEOC Determines Title VII Applies To Sexual Orientation

Volume 14, Issue 22
October 5, 2015

Rather than waiting for Congress to expand Title VII, the EEOC has taken matters into its own hands, declaring in a recent federal sector case, Baldwin v. Dep't of Transportation, that an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.

David Baldwin worked in air traffic control for the Federal Aviation Administration Agency in Miami, Florida. He filed an EEO complaint alleging that he had not received a permanent position because he is gay. The Agency investigated and dismissed his complaint as untimely. Baldwin appealed to the EEOC, which ruled that his complaint was timely. The EEOC also took the opportunity to address the sexual orientation claim, ordering the Agency to process Baldwin's claim on the merits under Title VII.

In the past, the EEOC has acknowledged that sexual orientation is not protected by Title VII but has determined that sexual orientation discrimination may be actionable when it intersects with sex discrimination because sexual stereotypes are involved. In Baldwin, however, the EEOC went much further and determined that while "Congress may not have envisioned the application of Title VII to these situations," "[n]othing in the text of Title VII suggests that Congress intended to confine the benefits of [the] statute to heterosexual employees alone." Determining that Title VII's prohibition of sex discrimination must "go beyond the principal evil" it was meant to combat to "cover reasonably comparable evils," the EEOC determined that "[i]nterpreting 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 EEOC offered three reasons to support its determination that Title VII's prohibition against sex discrimination necessarily applies to sexual orientation discrimination:

1. "Sexual orientation as a concept cannot be defined or understood without reference to sex." As an example, if an employer suspends a lesbian employee for displaying a photo of her spouse on her desk but allows the men in the office to display photos of their wives on their desks, the employer discriminates against the lesbian employee's sex.

2. "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." Because the courts and the EEOC have long recognized that Title VII prohibits discrimination based on an employee's association with a person of another race, such as an interracial marriage or friendship, this analysis must also apply to sex discrimination.

3. "Sexual orientation discrimination also is sex discrimination because it necessarily involves discrimination based on gender stereotypes." Since the Supreme Court's decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) that Title VII is meant to "strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes," the courts and the Commission have recognized that lesbian, gay, and bisexual individuals can bring claims of gender stereotyping under Title VII if such individuals demonstrate that they were treated adversely because they were viewed - based on their appearance, mannerisms, or conduct - as insufficiently "masculine" or "feminine."

Nevada law already prohibits discrimination in employment because of sexual orientation and gender identity or expression. NRS 613.330. Accordingly, most Nevada employers should already prohibit, via their employment and harassment policies, discrimination and harassment based upon sexual orientation and gender identity or expression. If a Nevada employer's policies, practices and training do not already take into account these forms of discrimination and harassment, they should be immediately modified. It is likely that Nevada employers will see an increase in sexual orientation charges from the EEOC as it seeks to fulfill its Strategic Enforcement Plan for Fiscal Years 2013-2016. As we wait to see whether the courts will adopt the EEOC's position, we recommend that Nevada employers familiarize themselves with the EEOC's position on LGBT discrimination and continue to closely monitor this issue in all aspects of operations.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.