The U.S. Equal Employment Opportunity Commission (EEOC or Commission) has issued a potentially groundbreaking decision finding that discrimination based on "sexual orientation" can be brought under Title VII of the Civil Rights Act of 1964 (Title VII).¹  In so ruling, the Commission rejected several circuit court decisions that ruled Title VII does not include protection from discrimination based on sexual orientation.

In this case, the complainant, who was a temporary front line manager at a Federal Aviation Administration (Agency) facility in Miami, Florida, alleged he was not promoted to the permanent front line manager position because he was an openly gay man.  The permanent position was never filled. 

The Agency never reached a determination on the merits of the claim, and dismissed the complaint on the grounds it had not been raised in a timely fashion as required by EEOC regulations.  The complainant subsequently appealed the Agency's decision to the Commission.

The Commission's Decision

On appeal, the Commission found that the claim was timely.  While it did not make a determination on the merits of the claim, the Commission did conclude that Title VII forbids discrimination based on one's sexual orientation because it is a form of "sex" discrimination.

The Commission held, "[s]exual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee's sex."  In reaching its conclusion, the Commission held "[d]discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms.  'Sexual Orientation' as a concept cannot be defined or understood without reference to sex." 

In support of its decision, the Commission relied on a number of notable cases, including the U.S. Supreme Court's decision in PriceWaterhouse v. Hopkins, 490 U.S. 228 (1989), which found that discrimination against an individual for failing to conform to gender-based stereotypes violates Title VII.

The Commission rejected previous court of appeals decisions that held that Congress in 1964 did not intend Title VII to apply to sexual orientation and, therefore, Title VII could not be interpreted to prohibit such discrimination. The Commission also rejected other court of appeals decisions that relied on the fact that Congress has debated, but not yet passed, legislation explicitly providing protections for sexual orientation, holding instead:

[t]he idea that congressional action is required (and inaction is therefore instructive in part) rests on the notion that protection against sexual orientation discrimination under Title VII would create a new class of covered persons.  But analogous case law confirms this is not true.  When courts held that Title VII protected persons who were discriminated against because of their relationships with persons of another race, the courts did not thereby create a new protected class of "people in interracial relationships."

The Commission concluded that allegations of discrimination by the complainant—and any other individual—"on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex," which the Agency must treat as complaints of sexual discrimination under Title VII. (emphasis added).

Implications for Employers

Because this case arose in the context of federal-sector employment, the decision will be binding on all federal agencies and departments and will have a direct impact on federal government employees. 

The Commission's decision appears to represent a significant shift in how the EEOC views claims of discrimination based on sexual orientation.  For the 28 states that lack any explicit state-level protections against discrimination on the basis of sexual orientation, this decision has the potential to have a significant impact on employers with 15 or more employees.

The decision appears to be consistent with the Commission's Strategic Enforcement Plan (announced in December 2012 for FY 2013-2016, see http://www.eeoc.gov/eeoc/plan/sep.cfm), which lists "coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions" as an enforcement priority, and likely will influence the EEOC's enforcement and litigation activities, both at the Commission level as well as throughout its field offices.  

The EEOC’s decision also may be entitled to at least some deference by federal courts.  It is likely that the EEOC and plaintiffs will seek to apply this decision and its rationale to public and private employers alike.  This is particularly true given the decision was not limited to the specific facts of the case; rather, the EEOC clearly announced a broader interpretation that applies to any individual who has suffered discrimination based on his or her sexual orientation, and affords such individuals recourse under Title VII.

As a result, both public and private employers should review and consider revising their policies and practices to conform to the EEOC's decision.  The policies and procedures that should be reviewed include, but are not limited to:

• Non-discrimination, harassment, and EEO policies;
• Pre-employment screening and background or security clearance policies and procedures; and
• Codes of conduct applicable to employees.

Employers may also want to review any policies that, inadvertently or intentionally, treat employees differently based on their sexual orientation. 

Most importantly, employers should take all steps necessary—including training their managers and employees—to guard against possible harassment, discrimination, or retaliation against employees and applicants based on their sexual orientation.