EEOC Says Workplace Sexual Orientation Bias Is Illegal
Author: David B. Weisenfeld, XpertHR Legal Editor
July 20, 2015
In a historic ruling, the Equal Employment Opportunity Commission (EEOC) has found that sexual orientation discrimination is illegal under Title VII of the Civil Rights Act.
The EEOC case of Complainant v. Foxx involved a supervisory air traffic control specialist at Miami International Airport who claimed he lost out on a permanent front-line manager position because he is gay. He also alleged that his supervisor, who was involved in the selection process, had made several negative comments about the employee's sexual orientation.
In a 3-2 vote, the EEOC commissioners concluded that the employer relied on sex-based considerations in denying the complainant a permanent position. The agency added that sexual orientation is inherently a "sex-based consideration" and that a discrimination claim based on sexual orientation is necessarily a sex discrimination allegation under Title VII.
The EEOC also said that Title VII prohibits employers from treating an employee or job 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.
In reaching its ruling, the EEOC relied on the Supreme Court's 1989 Price Waterhouse v. Hopkins decision, which held that discrimination against an employee for failing to conform to gender-based stereotypes violates Title VII.
The EEOC's July 15 pronouncement comes on the heels of the Supreme Court's landmark decision to legalize same-sex marriage nationwide. However, the Supreme Court's ruling did not address sexual orientation discrimination that may arise in hiring, firing or promotion decisions.
The commission's ruling governs complaints that are filed with any EEOC office. However, the EEOC's ruling does not bind the federal courts. Although 22 states explicitly ban workplace discrimination based on sexual orientation, Title VII does not specifically mention "sexual orientation" as a protected category.
Last year, President Obama signed an Executive Order protecting lesbian, gay, bisexual and transgender individuals from discrimination and harassment. The Executive Order applies to federal contractors and federal agencies.