In mid-July, the EEOC issued a decision that sexual orientation discrimination in the workplace is illegal under federal law. The Commission held 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.” Complainant v. Dep’t of Transportation, EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 16, 2015). Title VII?! While undeniably significant, the decision also is in direct opposition to the EEOC’s previous unequivocal rulings that Title VII’s prohibition against sex-based discrimination did notinclude sexual orientation discrimination.
THE EEOC’S EVOLUTION OF JUSTICE FOR LGBT WORKERS
In Complainant v. Department of Transportation, the Complainant, an air traffic controller, alleged that he was not selected for a Front Line Manager position because he is gay. The Complainant alleged that his supervisor, who was involved in the selection process, made several negative comments about his sexual orientation. For example, when the Complainant mentioned to his supervisor that he and his partner had attended Mardi Gras in New Orleans, the supervisor responded, “We don’t need to hear about that gay stuff.” His supervisor also told the controller on a number of occasions that he was “a distraction in the radar room” when he would mention his partner. Id. at *2. After Complainant filed his EEO complaint against the Agency, the Agency ruled that he failed to state a claim for discrimination under Title VII. In so doing, the Agency was following decades of EEOC precedent. See, e.g., Phillips v. Dep’t of Navy, EEOC Appeal 03800105 at *3 n1 (January 14, 1981) (agency’s rejection of claim based on sexual orientation was “proper in that there was not and is not in the regulations provision for the acceptance of complaints of discrimination based on sexual orientation”).
Title VII, as it applies to federal employers, provides that, “all personnel actions affecting [federal] employees or applicants for employment…shall be made free from any discrimination based on…sex.” 42 U.S.C. § 2000e-16(a). This provision is analogous to Title VII’s prohibition of sex discrimination in the private sector: “It is unlawful for a covered employer to fail or refuse to hire or discharge any individual, or otherwise to discriminate with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s…sex.” 42 U.S.C. § 2000e-2(a)(1).
In deciding Complainant v. Department of Transportation, the EEOC relied in part on the Supreme Court’s ruling in 1989 that an employer may not rely upon sex-based considerations, “or take gender into account” in making an employment decision. Price Waterhouse v. Hopkins, 490 U.S. 228, 244 (1989). In Price Waterhouse, the Court considered allegations that a female senior manager was denied partnership in the firm because she was considered “macho” and “overcompensated for being a woman.” In a 6-3 decision, the Court held that Title VII barred not just discrimination because of biological sex, but also gender stereotyping: “in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Id. at 251.
Apparently rejecting the notion that sexual orientation discrimination is often the result of impermissible gender stereotyping, the EEOC continued to rule after Price Waterhouse that sexual orientation discrimination was not prohibited by Title VII. In Johnson v. U.S. Postal Service, EEOC Appeal No. 01911827 (Dec. 19, 1991), the Commission held that allegations of discrimination based on biological sex stated a cognizable claim under Title VII, but allegations of discrimination based on sexual preference did not. In Morrison v. Department of Navy, EEOC Appeal No. 01930778 (June 16, 1994), the Commission held that the complainant failed to state a claim for discrimination under Title VII, where his co-workers had made derogatory statements to him because they perceived him to be a homosexual. “[T]he Commission finds that Title VII’s prohibition of sexual harassment does not apply to cases which raise issues regarding an individual’s perceived sexual preference or orientation.” Id. at *3.
In 1998, the Supreme Court held in Oncale v. Sundowner Offshore Services, Inc., 527 U.S. 75, 82 (1998), that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII. Following the Supreme Court’s ruling in Oncale, the Commission held in Morris v. U.S. Postal Service, EEOC Appeal No. 01974524 (Feb. 9, 2000), that the complainant stated a cognizable claim under Title VII for sex-based discrimination by a management official who is the same sex as complainant. The complainant (a woman) claimed that a management official (also a woman) discriminated against her on the basis of her sex after the complainant discontinued a sexual relationship with her. The Commission found that the Agency erroneously dismissed the claim, in that it had mischaracterized the complaint as concerning discrimination based on complainant’s sexual orientation or sexual preference.
Although Price Waterhouse rendered gender-stereotyping discrimination illegal in 1998, it was not until 2011 that the Commission began to recognize and hold that sexual orientation discrimination can constitute a claim of sex discrimination under Title VII where the discrimination was based on gender stereotypes: Veretto v. U.S. Postal Serv., EEOC Appeal No. 0120110873 (July 1, 2011); Castello v. U.S. Postal Serv., EEOC Request No. 0520110649 (Dec. 20, 2011); Baker v. Social Security Admin., EEOC Appeal No. 012011008 (Jan. 11, 2013); Dupras v. Dep’t of Commerce, EEOC Request No. 0520110648 (March 15, 2013); Culp v. Dep’t of Homeland Security, EEOC Appeal No. 0720130012 (May 7, 2013); Brooker v. U.S. Postal Serv., EEOC Request NO. 0520110680 (May 20, 2013); and Complainant v. Dep’t of Homeland Security, EEOC Appeal No. 0120110576 (Aug. 19, 2014).
In 2011, the Eleventh Circuit applied the “gender stereotyping” principle to claims of transgender discrimination. “A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. ‘The very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior.’” Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011) (citation omitted). The Eleventh Circuit held that, “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender.” Id. at 1317. Following suit, the Commission held in 2012 that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is sex-based discrimination and therefore prohibited under Title VII. Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821 (April 20, 2012).
In the recent decision of Complainant v. Department of Transportation, the Commission pronounced that “allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex.” The Commission articulated three circumstances in which a claim of discrimination on the basis of sexual orientation constitutes a claim of sex discrimination under Title VII: (1) Where the discrimination involved treatment that would not have occurred but for the individual’s sex; (2) Where the discrimination was based on the sex of the person(s) with whom the individual associates; and/or (3) Where the discrimination was premised on a fundamental sex stereotype, norm or expectation that individuals should be attracted only to those of the opposite sex. Complainant v. Dep’t of Transportation, 2015 WL 4397641 at *10. Acknowledging its departure from its previous decisions holding that Title VII does not prohibit sexual orientation discrimination because sexual orientation discrimination is not discrimination based on sex, the Commission explained that its own “understanding of Title VII’s application to sexual orientation discrimination has developed over time.” Id. at n13 (citing Johnson v. U.S. Postal Serv., EEOC Appeal No. 01911827 (Dec. 19, 1991); Morrison v. Dep’t of Navy, EEOC Appeal No. 01930778 (June 16, 1994); and Morris v. U.S. Postal Serv., EEOC Appeal No. 01974524 (Feb. 9, 2000)).
In Complainant v. Department of Transportation, the Commission concluded that “courts have gone where the principles of Title VII have directed,” and “[o]ur task is the same.” Id. at *9-10. Recently, the Supreme Court held in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), that same-sex couples could not be denied the fundamental right to marry under the Due Process and Equal Protection Clauses of the United States Constitution. The Commission cited Obergefell in its discussion of sexual orientation discrimination necessarily entailing treating an employee less favorably due to the employee’s sex. If the Supreme Court had decided that same-sex couples were not afforded the fundamental right to marry under the Due Process and Equal Protection Clauses, it does not seem likely that the Commission would have ruled that sexual orientation discrimination is sex-based discrimination under Title VII, at least not on the theory that it involves less favorable treatment.
While the Commission has taken over 40 years to conclude that Title VII’s prohibition against sex discrimination necessarily includes sexual orientation discrimination, has the Commission actually gone too far? EEOC decisions are issued only in cases filed by federal employees against federal agencies. Federal agencies are not entitled to challenge in court those EEOC decisions in which they are the losing party, and there is no comparable procedure applicable to private employers. While Congress granted federal employees the right to obtain de novoreview in court of adverse EEOC decisions, the legal reasoning of those decisions is entitled to deference by the courts. One outstanding question is the reaction of the courts to the EEOC’s shift in its analysis if the Commission sues a private employer for discriminating against an employee on the basis of sexual orientation. A similar situation arose in Federal Communications Commission v. Fox Television Stations, Inc., 132 S.Ct. 2307 (2012), in which the Supreme Court held that the FCC went too far when it failed to give fair notice to Fox or ABC prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent. In this instance, on the other hand, the EEOC’s decision in Complainant v. Department of Transportation clearly places private employers on notice of the analysis that will be applied, at least as of July 16, 2015.
Societal and historical notions of sex discrimination undoubtedly play a role in rulings by courts and the Commission involving sexual orientation discrimination, just as those notions play pivotal roles in decisions involving marriage equality. “The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time.” Obergefell, 135 S.Ct. at 2595. In Complainant v. Department of Transportation, the Commission stated that “Congress may not have envisioned the application of Title VII to these situations.” Complainant v. Dep’t of Transportation, 2015 WL 4397641 at *9. But as a unanimous Court stated in Oncale, “‘statutory prohibitions often go beyond the principle evil [they were passed to combat] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.’” Id. (quoting Oncale, 523 U.S. at 79). The evolution of justice for LGBT workers is intricately dependent on societal notions, and on the willingness of courts and the Commission to adapt to those evolving notions.
Written by Valerie Chastain