EEOC Rules “Sexual Orientation” Within Definition of “Sex” for Purpose of Civil Rights Act of 1964

In a decision issued July 16, 2015, the United States Equal Employment Opportunity Commission (EEOC) ruled that claims of lesbian, gay and bisexual individuals may be brought to the EEOC under the provisions of Title VII of the Civil Rights Act of 1964, which prohibits employers from relying upon sex based considerations or taking gender into account when making employment decisions. While the decision came in the context of a Federal government employee complaint, the Commission notes that the language applicable to the private sector is essentially the same, suggesting it would apply the same logic.  The 3-2 decision, in apparent conflict with the rulings of many of the Federal Circuit Courts of Appeals, does not purport to create a separate class of individuals to be protected, but instead concludes that:

[S]exual 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.  EEOC Appeal No. 0120133080 at 6.

The decision provides examples of what it calls the “inescapable link between allegations of sexual orientation discrimination and sex discrimination.”  The Commission presents for illustration a scenario in which an employer suspends a lesbian employee for displaying a photo of her female spouse on her desk, but does not suspend a male employee for displaying a photo of his female spouse on his desk.  The lesbian employee in that example can allege that her employer took an adverse action against her that the employer would not have taken had she been male.  Similarly, a heterosexual man who alleges a gay supervisor denied him a promotion because he dates women instead of men states an actionable Title VII claim of discrimination because of his sex.  (Id. at 6, 7, 8).

The Commission further cites the language of the Federal District Court for the Western District of Washington State (Hall et. al. v. BNSF Railway Company, No. 2:2013CV02160 – Document 37, 7 (W.D. Wash. 2014)) referencing numerous instances in which courts have ruled that these types of claims are not predicated on an individual’s “sexual orientation” but on their “sex.” In that order, the Court refused to uphold a motion for summary judgment in a case in which the sexual orientation discrimination alleged by the plaintiff constituted an allegation that the employer was treating female employees with male partners more favorably than male employees with male partners simply because of the employee’s sex, when the male employee was denied spousal benefits.

Opponents of this viewpoint will argue that the decision stretches the limits of Title VII because there is no reference to protection of the rights of those with different sexual orientation, but the Commission does not attempt to create a separate protected class, or even suggest such a distinction is relevant.  In fact, it states clearly:

When an employee raises a claim of sexual orientation discrimination as sex discrimination under Title VII, the question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions.  It is not.  Rather, the question for purposes of Title VII coverage of a sexual orientation claim is the same as any other Title VII case involving allegations of sex discrimination — whether the agency has “relied on sex-based considerations” or “take[n] gender into account” when taking the challenged employment action. (appeal at 5).

This approach is consistent with EEOC rulings and Federal Court decisions in the application of the Act on discrimination based on race, in situations, for example, where discrimination occurred based on an employee’s association with a person of another race, such as interracial marriage.  No new protected class was created — people with spouses of a different race — it simply defined what was meant by “race” in the context of discrimination.

There are numerous decisions at the District and Circuit Court levels that find that as sexual orientation was not specifically included as a class, it is not protected, or further, that as Congress has several times had the opportunity to specifically include sexual orientation, it has not done so.  The Commission observes that “courts have attempted to distinguish discrimination based on sexual orientation from discrimination based on sex, when while noting that the ‘border [between the two classes] are imprecise.” Id. at 8.

In response to the argument that Congress may never have intended the application of Title VII to apply in these situations, the Commission responded by quoting the US Supreme Court in Oncale v. Sundowner Offshore Services, Inc.:

“[S]tatutory prohibitions often go beyond the principal 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.” 523 U.S. 75, 79, 78-80 (holding that same-sex harassment is actionable under Title VII).

With significant difference in opinions between decisions of the various Circuits as well as Federal District Courts, it is far from certain that the Commissions guidance will be followed and upheld once it inevitably reaches the courts.  In the same manner, future administration appointments to the EEOC may cause a reversal of the Commission’s opinion, given the narrow 3-2 majority.  However, the  Commission’s ruling does make a persuasive case that the US Supreme Court’s ruling in Price Waterhouse v. Hopkins, 490 U.S. 228, in which the Court ruled that discrimination based on sex-based stereotypes (e.g., behavior not conforming with “masculine” or “feminine” stereotypes) was impermissible under Title VII, supports the notion that sexual orientation clearly falls into the realm of failing to act according to expectations defined by gender.  As such, the argument goes, discrimination based on sexual orientation is equivalent to discrimination based on sex and gender.

What this means for employers is that they should understand that the EEOC has taken a position, and apparently issued guidance to its field officers to look for cases with the potential for policy development.  Combined with the recent US Supreme Court ruling preventing bans on same sex marriage, the legal and administrative climate seems to have little empathy for those discriminating against gay, lesbian, bisexual and trans-gendered individuals. Employers should be aware of this situation, and regardless of their philosophical positions, should continually review both their policies and the behavior of their employees to determine whether they are at risk of litigation or administrative actions. For more detail, concerned employers should seek appropriate legal counsel in their jurisdiction.

About Edmund B. Ura

Edmund B. Ura, MAIR, JD, works with governing boards, executives and human resources staff to develop methodologies for ensuring fair and equitable compensation programs that support achievement of organizations' missions. Contact Ed at ebura@mercesconsulting.com.

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