EEOC Issues Ruling on Workplace Sexual Orientation Discrimination

On July 15, 2015, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued its ruling in Complainant v. Foxx finding that all types of discrimination based on sexual orientation are forms of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964.  The ruling is a victory for the Lesbian Gay Bi-Sexual and Transgender (“LGBT”) community and means that LGBT employees now have protection comparable to other employees in the workplace.  Previously, the EEOC limited sexual orientation discrimination claims to cases where workers alleged they were victims of stereotypes based on sex.

The case was brought by a federal air traffic control specialist in Miami, who contended he was denied a promotion because he was gay.  While the EEOC noted that the language contained in Title VII does not distinguish “sexual orientation” from “sex,” the EEOC found that there could no longer be a distinction between the two.  Further, the EEOC noted that “[a]n employee could show that the sexual orientation discrimination . . . experienced was sex discrimination because it involved treatment that would not have occurred but for the individual’s sex.”  According to the EEOC, to interpret the protections granted under Title VII as exclusionary with regard the LGBT community, is to incorrectly interpret Congress’s intent.  The EEOC also reasoned that that if Congress intended for the statute to apply solely to heterosexual individuals, a revision to the language would have already been made.  The EEOC based its ruling in part on the U.S. Supreme Court’s 1989 decision in PriceWaterhouse v. Hopkins, which held that is was a violation of Title VII to discriminate against an individual for failing to conform to gender-based stereotypes.

While the EEOC’s decision is persuasive, it is up to the federal courts to give weight to the EEOC ruling and decide whether to apply this ruling to claims by private-sector employees.  In many states, including New Jersey, it is already illegal for employers to discriminate on the basis of sexual orientation and gender identity in employment, education, housing and public accommodations.

On July 23, 2015, federal legislation to ban discrimination against LGBT individuals was introduced by U.S. Senator Cory Booker (D-N.J.) and 39 of his fellow Senators.  U.S. Sen. Robert Menendez (D-N.J.) is one of the bill's co-sponsors. The new law, entitled the Equality Act of 2015, would explicitly add sexual orientation and gender identity to Title VII and would cover employment, housing, public accommodations, education, jury service and credit.

Employers’ Takeaways:

• The EEOC’s decision extending Title VII’s protections to claims based on sexual orientation is binding on all federal agencies, departments and employees.

• Both public and private employers should consider revising their non-harassment, non-discrimination and EEO policies and practices, to conform to the EEOC's decision.

• Employers must advise and train their managers and employees to ensure a work environment free of harassment, discrimination, or retaliation based on sexual orientation.

For more information regarding the EEOC’s decision and how it impacts your workforce, please contact John C. Petrella, Esq., Director of the firm's Employment Litigation Practice Group at jpetrella@genovaburns.com, or Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practice Group, at dmastellone@genovaburns.com or 973-533-0777.  This blog post was written with the assistance of Amanda Frankel.