The employee at issue in the EEOC’s decision was a gay Department of Transportation employee, who sought a promotion that he did not receive. As evidence that he was the victim of sexual orientation discrimination, the employee cited a supervisor’s comment that, “We don’t need to hear about that gay stuff,” as well as the supervisor’s statement that he was “a distraction in the radar room” when he mentioned his male partner. The EEOC ultimately concluded that “Title VII’s prohibition of sex discrimination…applies equally in claims brought by lesbian, gay, and bisexual individuals under Title VII.”
The EEOC cited three reasons for its conclusion that discrimination on the basis of sexual orientation is prohibited by Title VII’s prohibition against discrimination on the basis of sex. First, the EEOC found that “sexual 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.” Second, the EEOC concluded that sexual orientation discrimination is associational discrimination, based on the employee’s close association with another individual of the same sex. Third, the EEOC found that sexual orientation discrimination is inherently based on employees’ failure to conform to heterosexual gender stereotypes.
The Supreme Court of the United States has found that discrimination on the basis of an employee’s failure to conform to traditional gender stereotypes is prohibited by Title VII’s prohibition against sex discrimination. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). That decision did not protect employees from sexual orientation discrimination in all instances, but it did prohibit employers from making employment decisions on the basis of an employee’s conformity with traditional gender stereotypes. The EEOC’s recent decision expands Price Waterhouse by prohibiting discrimination on the basis of sexual orientation, regardless of whether the employee failed to conform to traditional gender stereotypes.
As mentioned above, while state government and private employers are not formally impacted by this decision, it signals a strong push in the EEOC’s enforcement practices with regard to allegations of sexual orientation discrimination, and additionally shows that the EEOC intends to enforce Title VII as if it had been amended to include sexual orientation as a protected class, even though many years of legislative action in that regard have not resulted in Congress amending Title VII. Because the EEOC can pursue allegations of Title VII discrimination on behalf of individual employees, the EEOC may pursue enforcement litigation against state government and private employers accused of sexual orientation discrimination regardless of whether the employee alleges that he or she has been subjected to sex stereotyping. In light of this development, state government and private employers should consult counsel to review their discrimination and harassment policies and other personnel policies and procedures.
Written by: Thomas Evan Green and Andrew J. Wolf
