Alan Schorr’s Employment Case of The Week ending July 31, 2015

Complainant v. Foxx, EEOC Appeal No. 0120133080 (EEOC July 15, 2015)

In a decision a long time coming, the EEOC ruled earlier this month that Title VII prohibits discrimination on the basis of sexual orientation.  Until now it has been accepted that, even though same-sex couples can now legally marry in all 50 states, Federal law does not prohibit employers from discriminating against persons based upon their sexual orientation.  This case is not binding on the Federal Courts, but the EEOC provides very cogent arguments as to why Federal Courts should follow this case.

Complainant (identified only as a gay male) filed a discrimination claim with the U.S. Department of Transportation (Federal Aviation Administration Agency) after failing to be selected for a permanent position at the Miami tower.  Complainant claimed that the refusal to select was discriminatory and retaliatory based upon his sexual orientation.  The Agency never addressed the merits of his claim, deciding that his claim was not timely made.  He appealed to the EEOC.  The EEOC quickly disposed of the timeliness issue, finding that the claim was timely filed.  They then addressed the sexual orientation claim.

Unlike the New Jersey Law Against Discrimination, which expressly forbids discrimination on the basis of sexual orientation, the federal law, Title VII, only prohibits discrimination on the basis of “sex”.  The Agency argued, based upon a long line of Federal cases, that Title VII does not protect against discrimination based upon sexual orientation.  In a brilliantly constructed argument infusing impeccable logic, the EEOC explained why Title VII should be interpreted to include protection against discrimination on the basis of sexual orientation.

First, the EEOC reasoned that sexual orientation is inherently a “sex-based” discrimination.  Explaining that the terms “gay”, “lesbian”, “straight”, and “heterosexual” all refer to whether a person is emotionally attracted to someone of the opposite sex.  Therefore sexual orientation is inescapably linked to sex. The example used in the opinion assumes that an employer suspends a lesbian employee for having a photograph of her wife on her desk, but does not suspend a male employee who has a picture of his wife on his desk.  The discrimination is necessarily about sex, because if the spouse’s sex or the employee’s sex was different, there would not have been discipline.

Second, the EEOC pointed out that sexual orientation discrimination is protected because it is no different from associational discrimination, which is protected.  For example, if a Caucasian employee is terminated because of his or her marriage to an African-American, federal courts have held that discrimination based upon association with a protected class is protected under Title VII.  Similarly, if a gay man suffers discrimination because he associates with or is married to a man instead of a woman, Title VII must protect that discrimination.

Third, many federal courts have found protection of sexual orientation in matters where the discrimination was based upon “sexual stereotyping”.  Under that theory, a man who had feminine mannerisms or a woman who had masculine mannerisms could find Title VII protection because their behavior was not sexually stereotypical.   This narrow definition ignores the fact that these stereotypes are defined by homosexuals, and therefore do not protect homosexual employees who do not “act” in conformity with what heterosexuals believe people of each gender should act like.  The real reason that stereotype discrimination must cover gay and lesbian employees is because the stereotypical man or woman is attracted to someone of the opposite sex.  Being attracted to someone of the same sex, therefore, would be a per se non-stereotypical act, and therefore merits Title VII protection.

The EEOC then attacked those courts who have refused to protect gays and lesbians based upon the argument that Congress did not add sexual orientation as a protected class and therefore must not have intended to protect it.  The EEOC reasoned that Title VII also does not expressly prohibit associational discrimination or stereotype discrimination, yet courts have ruled that Congress intended to protect those employees.   Accordingly, the EEOC held that Title VII protects employees who suffer discrimination because of their sexual orientation.  The opinion finds that the Complainant properly stated a claim of discrimination that was timely and remanded for further processing.

This is a case that should be saved and quoted and produced in support of every Title VII sexual orientation case.  The logic of this case is so compelling that I believe the Supreme Court will need to review a case soon in order to make clear that sexual orientation claims are, in fact, sex discrimination claims.  Until then, New Jersey LGBT employees are still fully protected by the New Jersey Law Against Discrimination, which expressly and explicitly protects against discrimination on the basis of “civil union status, domestic partnership status, affectional or sexual orientation” and “gender identity or expression”.  Hopefully, our federal courts will follow suit soon.

Opinion by: Bernadette B. Wilson, Acting Executive Officer, EEOC.