Title VII does not specifically prohibit discrimination based upon sexual orientation.
Even so, courts and the EEOC have recently been willing to afford Title VII protection from sex discrimination to individuals on the basis of sexual orientation. The rationale for extended protection emanates from Price Waterhouse v. Hopkins, which held that Title VII prohibits discrimination based on an individual’s failure to conform to sex stereotypes.
In a decision issued last week, administratively adjudicating a federal government employee’s sexual orientation discrimination claim, the EEOC determined that
. . . the question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. It is not. Rather the question for the purposes of Title VII coverage of a sexual orientation claim is the same as any other Title VII case involving allegations of sex discrimination – whether the [employer] has relied on sex-based considerations.
According to the EEOC, discrimination on the basis of sexual orientation is premised on sex-based expectations and stereotypes. Therefore, the EEOC concluded 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 decision cites a number of federal courts from across the country recognizing Title VII stereotyping claims based on sexual orientation. The EEOC extensively relies on the US District Court for the DC Circuit’s reasoning from its 2014 opinion in Terveer v. Billington, which held that a plaintiff stated a claim for sex discrimination based on his sexual orientation. The plaintiff there alleged that he is a homosexual male whose sexual orientation is not consistent with the defendant's perception of acceptable gender roles, and that the defendant denied him promotions and created a hostile work environment because of his nonconformity with male sex stereotypes. The court denied defendant’s motion to dismiss, finding that the plaintiff sufficiently plead he was the victim of sex stereotyping, a form of sex discrimination recognized under Title VII.
Although the recent EEOC ruling does not disturb the existing federal law, which does not extend Title VII protections to claims based on sexual orientation in the absence of sex stereotyping, momentum is gathering behind the EEOC’s view, underscored by the Supreme Court’s ruling in Obergefell v. Hodges that legalized same sex marriage nationwide. Thus, employees treated less favorably than other employees because he or she does not fit into a particular mold of how someone of that gender should look or act may likely have a valid Title VII sex-discrimination claim. Some federal courts may be persuaded that sexual orientation discrimination is sex stereotyping prohibited by Title VII.
Until the matter is reconciled in a future Supreme Court ruling, or act of Congress, employers seeking to avoid lawsuits should base their employment decisions on valid business factors and legitimate reasoning – and not upon biases or stereotypes. Employers should also review and consider revising their policies and procedures as related to non-discrimination, harassment, EEO policies, and benefits to conform to the recent EEOC decision.