EEOC: Sexual Orientation Included in Title VII Sex Discrimination

In a Decision released this month, the Equal Employment Opportunity Commission (EEOC) clarified that discrimination based on sexual orientation is “necessarily an allegation of sex discrimination under Title VII.” Complainant v. Foxx (EEOC 2015).

The complainant, whose name is redacted from the Decision, alleged that the Federal Aviation Administration discriminated against him based on his sexual orientation and retaliated against him for prior protected activity when it failed to choose him for a permanent Front Line Manager position. Although he did not actually apply for the job, he alleged that all temporary Front Line Managers were automatically considered and that management knew of his interest in the position.

The complainant filed an EEO complaint in December 2012, claiming that his supervisor, who was involved in the selection process, made negative comments about his sexual orientation, including stating, “We don’t need to hear about that gay stuff,” after the complainant mentioned a trip he had made with his partner to Mardi Gras.

After concluding the complaint was timely filed and properly under the EEOC’s jurisdiction, EEOC determined that Title VII’s prohibition on sex discrimination means that employers may not rely upon sex-based considerations or take gender into account when making employment decisions. “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,” the EEOC wrote. “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 [employer] has relied on sex-based considerations or taken gender into account when taking the challenged employment action … Indeed, we conclude that sexual orientation is inherently a ‘sex-based consideration.’”

While discrimination based on sexual orientation is not currently prohibited explicitly by Title VII, legislation to effect that change was introduced in both chambers of Congress last week.