Continuing a whirlwind month for both the federal government and U.S. employers, on July 16, 2015, the U.S. Equal Employment Opportunity Commission (EEOC) ruled that workplace discrimination based on an employee’s “sexual orientation” is already illegal under Title VII of the Civil Rights Act of 1964. The EEOC’s groundbreaking decision is the agency’s first administrative ruling declaring that employment discrimination against gay, lesbian, and bisexual workers is unlawful.
In a split 3-2 vote, the EEOC concluded that Title VII forbids sexual orientation discrimination on the job, because it’s a form of discrimination based on “sex or gender,” which the Act prohibits. In a seventeen page opinion (link here), the EEOC argues that when an employer disapproves of a lesbian employee’s orientation, it is really objecting to the fact that a woman is romantically attracted to another woman. According to the EEOC, such an objection is based on a “stereotyped” view of that employee’s gender role. The EEOC also presented a secondary theory, arguing that sexual orientation discrimination is “associational discrimination on the basis of sex.”
The EEOC’s analysis in this case is important. Three years earlier, the agency used a similar “sex stereotyping” analysis in ruling that discrimination based on an employee’s “gender identity” is also sex discrimination under Title VII. Since that time, many federal courts—including the Fifth Circuit Court of Appeals—has accepted this ruling in extending Title VII protections to transgender employees.
For now, the EEOC’s decision applies only to EEOC claims lodged by federal employees, as sexual orientation protection under Title VII for private employees has been generally rejected by the federal courts. However, even private employers should keep two important caveats in mind. First, the EEOC handles the initial investigation of EEOC Charges of Discrimination filed by private employees against private employers. Following this ruling, all charges of sexual orientation discrimination will be considered illegal at the EEOC level—something that may empower gay and lesbian private employees to lodge discrimination complaints. Second, until the U.S. Supreme Court offers its opinion, it is possible that lower federal courts may choose to accept the EEOC’s reading of Title VII—especially following the EEOC’s recent success with its position on sexual identity.
Employers should carefully review their current employment policies for areas this ruling could potentially impact, such as Employee Handbooks and Company EEO Statements.
This Newsletter is a publication of the Labor and Employment Department of the law firm of Brunini, Grantham, Grower & Hewes located in Jackson, Mississippi. This Newsletter is not designed or intended to provide legal or professional advice, as any such advice requires the consideration of the facts of the specific situation.
IRS Circular 230 Notice
To ensure compliance with requirements imposed by the IRS, we inform you that, unless specifically indicated otherwise, any tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code, or (ii) promoting, marketing, or recommending to another party any tax-related matter addressed herein.