Law@Work

The U.S. Equal Employment Opportunity Commission (EEOC) has ruled that discrimination against an employee  based on his or her sexual orientation can constitute sex discrimination under existing civil rights laws, adding to a wave of legal developments favoring protections for the LGBT community. The EEOC’s evolution of its interpretation of existing laws is especially noteworthy as it comes as Congress considers Employment Non-Discrimination Act (ENDA) and the Equality Act of 2015, both of which extend workplace protections to workers based on sexual orientation and gender identity. 

The EEOC ruling, issued on July 15, 2015 in Complainant v. Foxx, broke new ground when it reversed an EEOC Agency’s dismissal of a sexual orientation complaint and  found all types of discrimination based on sexual orientation are forms of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964.  For decades, the EEOC and the courts found no Title VII protections based on sexual orientation alone.  In recent years, however, the EEOC and some courts have extended Title VII protections to sexual orientation and gender identity discrimination when the discrimination can be characterized as arising out of sex-based stereotypes.  The Foxx decision takes this one step further. 

In Foxx, a federal air traffic controller based in Miami contended he was denied a promotion because he was gay.   In evaluating the scope of Title VII protections, the  EEOC noted Title VII does not exclude “sexual orientation” discrimination from its definition of discrimination based on “sex,” and the EEOC found that there can be no basis to draw  a distinction between the two.   Going forward, the EEOC directed, “Agencies should treat claims of sexual orientation discrimination as complaints of sex discrimination under Title VII and process such complaints through the ordinary . . . process.”   

The EEOC’s ruling binds the EEOC’s agencies but does not bind the courts,.  Nonetheless, state and federal courts routinely look to EEOC rulings for guidance in interpreting the Civil Rights Act and other federal anti-discrimination laws enforced by the EEOC.  In many states, including New Jersey, state laws already protects employees from discrimination based on sexual orientation and gender identity, so expansions of Title VII would have less impact on employers in those states. 

While the future is never certain, employers should expect state law and federal laws to increasingly protect employees from discrimination based on sexual orientation and gender identity, especially in light of the U.S. Supreme Court’s 2015 ruling recognizing same-sex marriage as a constitutionally-protected right.  Employers therefore should re-evaluate their anti-discrimination policies, identify any gaps relating to sexual orientation and gender identity, and consider expanding their policies and training, as needed, to protect employees from such discrimination.