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EEOC Lawsuits Seek to Extend Title VII to Sexual Orientation - Part II

What is the EEOC’s position on sexual orientation? 

Since at least 2013, the EEOC has taken the position that Title VII’s prohibition against discrimination “based on sex” includes discrimination based on sexual orientation.  Starting that year, the agency began accepting and investigating charges filed against private employers alleging sexual orientation discrimination.   In 2015, the agency received 1,181 charges alleging sexual orientation discrimination, and was able to resolve some of those charges via voluntary agreements yielding approximately $3 million in monetary relief for employees. 
The EEOC made its position abundantly clear this past summer in an administrative decision issued about one month after the U.S. Supreme Court made same-sex marriage legal in the landmark Obergefell v. Hodges decision.  In July 2015, the EEOC decided Baldwin v. Foxx, an administrative case, and concluded that a federal employer violates Title VII by discriminating against gay employees because of their sexual orientation.  That case involved a federal employee who brought a sex discrimination claim against the Department of Transportation.  Baldwin claimed he was not selected for a position because he is gay.  To support his claim, Baldwin presented evidence that a decision-maker in the selection process made several negative comments about Baldwin’s sexual orientation.
Title VII’s mandates regarding federal employment are parallel to the law’s requirements for private employers in that sex discrimination is prohibited, but sexual orientation is not mentioned as among the protected classes.  But the EEOC found that the existing Title VII protections against sex discrimination extended to sexual orientation discrimination.  The EEOC stated, “[s]exual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”  The EEOC gave the example of an employer who discriminates against a lesbian employee for displaying a photo of her wife, but not against a heterosexual man who does the same, arguing that the employer commits sex discrimination when it makes such sex-based distinctions.
The EEOC also likened its decision to associational discrimination based on race, noting that Title VII prohibits discrimination against employees for being in an interracial relationship.  The EEOC reasoned that because Title VII prohibits discrimination on the basis of sex, employers likewise cannot discriminate against employees for being in a same-sex relationship. 
The Baldwin decision demonstrates that the EEOC falls squarely in the camp that existing Title VII law – which does not include the words “sexual orientation” – protects employees from sexual orientation discrimination.  But just because the EEOC takes this position does not necessarily mean that the federal courts will follow suit. 
In the next installment I’ll talk about the EEOC’s attempt to extend Baldwin.

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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
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Jason Lacey, the Employee Benefits Guy
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