On July 16, 2015, the Equal Employment Opportunity Commission (EEOC) issued a decision confirming that workplace discrimination based on sexual orientation violates title VII of the Civil Rights Act of 1964 (Title VII)
Title VII is the primary federal statute that prohibits a range of discrimination against employees. This decision marks the first time the EEOC has formerly ruled Title VII prohibits discrimination based on sexual orientation.
In concluding that sexual orientation discrimination is also sex discrimination, the EEOC offered essentially three separate reasons in support of its decision in Complainant v. Foxx, E.E.O.C., Appeal No. 0120133080, 7/16/15-2015).
First, the EEOC concluded that sexual orientation is inherently a sex-based consideration in that it treats an employee less favorably because of that employee’s sex.
Indeed, we conclude 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 … Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. ‘Sexual orientation’ as a concept cannot be defined or understood without reference to sex … Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.
Second, the EEOC explained that:
Sexual orientation discrimination is also sex discrimination because it is associational discrimination on the basis of sex. That is, an employee alleging discrimination on the basis of sexual orientation is alleging that his or her employer took his or her sex into account by treating him or her differently for associating with a person of the same sex.
Third, the EEOC further supported its position by noting that “Sexual orientation discrimination is also sex discrimination because it necessarily involves discrimination based on gender stereotypes.”
Title VII and what is Says About Sexual Orientation
Title VII doesn’t mention sexual orientation and courts historically have reached inconsistent rulings as to whether the statute’s ban on sex discrimination covers sexual orientation discrimination.
Ironically, an opinion authored by Justice Scalia (yes, the guy who had a judicial meltdown in response to his fellow justices ruling in favor of marriage equality for same-sex couples) has become a cornerstone for one of the reasons the EEOC interpreted Title VII to prohibit sexual orientation discrimination. See the Slate article by Mark Joseph Stern, Thank Scalia for the Revolutionary EEOC Workplace Discrimination Decision, discussing Justice Scalia’s opinion in a case called Oncale v. Sundowner.
After the U.S. Supreme Court’s ruling in the Obergefell v. Hodges same-sex marriage case we explained here that employers need to, at a minimum, carefully evaluate taking adverse employment actions against homosexual employees who were to marry. This caution was necessary because Michigan’s anti-discrimination statute ((Elliott-Larsen Civil Rights Act or “ELCRA”) protects against discrimination based on marital status.
However, with the EEOC’s opinion discussed above, employers need to carefully evaluate all adverse employment decisions taken against employees based on their sexual orientation in order to avoid liability under Title VII for unlawful employment discrimination.
Also, while the EEOC’s ruling is limited to Title VII, it is important for Michigan employers and employees to understand that when applying Michigan’s anti-discrimination statute (ELCRA), Michigan courts are “guided” by federal interpretations of Title VII when interpreting provisions of the ELCRA. Normally, this means that EEOC rulings like the discussed above are “afforded substantial consideration” by Michigan’s courts. Whether this happens remains to be seen.
And this brings up one of the more interesting issues presented by the EEOC’s ruling: How many courts will follow the EEOC’s conclusion that Title VII protects against sexual orientation discrimination. In this regard, the EEOC’s interpretations on the scope of Title VII are considered persuasive but not binding authority on the courts.
Building on this point, there are courts who have concluded that sexual orientation is not among the list of prohibited bases for discrimination under Title VII. In support of this position, these courts have noted that Congress has repeatedly refused to add “sexual orientation” to employment protections and, therefore, Congress did not intend to eliminate anti-gay discrimination when it enacted Title VII.
For more information about complying with this new ruling from the Equal Employment Opportunity Commission or responding to sexual orientation discrimination issues, contact Michigan employment attorney Jason Shinn.