Everyone knows about the recent Supreme Court decision Obergefell v. Hodges with regard to gay marriage. Last year, President Obama entered an Executive Order prohibiting federal contractors from discriminating on the basis of gender identity and sexual orientation. In recent years, there has been a gradual acceptance that discrimination against transgender individuals constitutes discrimination on the basis of sex prohibited under federal law Title VII of the Civil Rights Act of 1964. Now, for the first time, EEOC (Equal Employment Opportunity Commission), the federal agency charged with enforcing discrimination laws, held in a July 15, 2015 decision that discrimination on the basis of sexual orientation necessarily involves discrimination on the basis of sex and is unlawful under Title VII.
The significance of this decision is that employers cannot rely on the fact that Congress never added “sexual orientation” as a protected class to federal anti-discrimination laws which expressly name race, color, religion, sex and national origin as bases for protection. Sexual orientation discrimination is now a subset of sex discrimination.
In reviewing the many claims of discrimination on the basis of sexual orientation, courts have consistently held that Title VII does not prohibit sexual orientation discrimination. However, discrimination on the basis of what is referred to as “gender stereotyping” has been recognized, most notably in the 1989 Supreme Court decision in Price Waterhouse v. Hopkins. There, the plaintiff claimed that she was denied a promotion because her employer found that her actions and conduct were not sufficiently feminine. The Court upheld her claim, stating that Title VII applied to discrimination because of gender, not just biological sex.
Subsequent cases relied on Price Waterhouse v. Hopkins to take a broader view of sex discrimination, and courts held that plaintiffs claiming discrimination on the basis of sexual orientation could state a cause of action if they could establish that the conduct involved unlawful sexual stereotyping or sexual harassment that turned in some way on their gender.
Now the EEOC decision goes one (big) step further and supports an interpretation of Title VII that would prohibit discrimination on the basis of sexual orientation independent of gender stereotyping. “Sexual discrimination 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”.
Although courts are not bound by an administrative agency’s interpretation of its governing statutes, they will often defer to the agency’s interpretation if it is found to be consistent with the meaning of the statute, its legislative history and overall congressional purpose. EEOC will no doubt be increasing enforcement and promoting litigation in federal courts to get its interpretation judicially approved and consistent with its Strategic Enforcement Plan to prioritize coverage of lesbian, gay, bisexual and transgender individuals under Title VII.
If you thought you weren’t affected by any prohibition of discrimination on the basis of sexual orientation or gender identity because your municipality did not have an ordinance including those as protected classes, and because you were not a federal contractor, think again. All employers who have not yet done so should include sexual orientation and gender identity as protected classes along with race, color, age, religion, disability, sex, and national origin with all EEO policies, postings and handbooks.