Most employers are familiar with the protected classes under Title VII of the Civil Rights Act of 1964.  While these classes include race, color, sex, religion, and national origin, “sexual orientation” is not mentioned as a protected category.  Accordingly, federal courts have traditionally declined to extend Title VII protection to plaintiffs asserting claims of discrimination based upon sexual orientation.  However, with the EEOC’s recent decision of Complainant v. Foxx, the landscape may be shifting with regard to LGBT rights under federal anti-discrimination statutes. images

In Foxx, the unidentified male Complainant worked for approximately two years as temporary managing air traffic controller for the Federal Aviation Administration in Miami, Florida.  He alleged that when he mentioned his male partner at work, his supervisor would call Complainant “a distraction in the radar room” and state that “we don’t need to hear about that gay stuff.”

Eventually, a permanent managing controller position came open.  Complainant did not submit a formal application but alleged that management knew of his desire to obtain a permanent position and that all temporary supervisors were automatically considered.  Complainant’s supervisor was involved in the selection process.  When Complainant was not selected for the permanent position, he filed a formal complaint with the EEOC alleging discrimination on the basis of sexual orientation.  The agency investigated and dismissed the complaint as untimely, and Complainant appealed.

On appeal, the EEOC reversed the initial decision, deciding that the complaint was timely.  The EEOC went further, holding that Complainant’s claim of sexual orientation discrimination was covered by Title VII, which prohibits discrimination based upon “sex-based considerations.”  In its lengthy discussion, the EEOC reasoned that “sexual orientation is inseparable from and inescapably linked to sex.”  Upon this “inescapable link,” the EEOC determined 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.”

The EEOC did not shy from confronting federal court cases (and even its own prior decisions) standing for the opposite proposition, branding them “earlier and dated.”  It noted that courts often cite the proposition that Title VII does not cover sexual orientation “without any additional analysis,” and stated that “many courts have gone to great lengths” to maintain the distinction between sex discrimination and sexual orientation discrimination.  That sexual orientation is not specifically mentioned in Title VII did not sway the EEOC, nor did the fact that Congress has repeatedly failed to pass legislation explicitly protecting sexual orientation.  Citing the U.S. Supreme Court, the EEOC inferred that congressional inaction could potentially simply mean that existing legislation “already incorporate[s] the offered change.”

Under the EEOC’s proposed new paradigm, a Title VII sexual orientation discrimination claim could arise in one of three situations: 1) the employee experienced treatment that would not have occurred but for the employee’s sex; 2) the treatment was based on the sex of the person(s) with whom the employee associates; and/or 3) the treatment was premised on the “sex stereotype” that individuals should only be attracted to those of the opposite sex.

Given that federal courts are not bound to follow EEOC decisions, it is unknown what effect the Foxx decision will have on litigation in the court system – including the civil litigation to arise from Foxx itself.  Courts could either find Foxx persuasive or reject it altogether.  Given the rapid pace that law addressing LGBT rights is currently evolving, however, employers should nevertheless take note of Foxx, as it could be a bellwether indicating the direction that law may take (either through court opinions or legislation).  Stay tuned for updates and, if a potential claim of sexual orientation discrimination appears in the workplace, consult competent employment counsel for the latest developments in this ever-changing area of law.

Mark focuses his practice in the area of labor and employment law. He regularly defends employers – both public and private sector – in employment-related lawsuits in the state courts of West Virginia and the federal District Court for the Southern District of West Virginia, as well as charges filed before the West Virginia Human Rights Commission, the West Virginia Public Employees Grievance Board, and the federal Equal Employment Opportunity Commission.
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