SEXUAL ORIENTATION DISCRIMINATION UNDER TITLE VII

EEOC Recently Held That Claim of Sexual Orientation Discrimination is a Claim for Sex Discrimination Under Title VII

EEOC Recently Held That Claim of Sexual Orientation Discrimination is a Claim for Sex Discrimination Under Title VII

Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin and religion. However, in a recent decision, issued on July 16, 2015, the EEOC held that a claim of sexual orientation discrimination is a claim of sex discrimination under Title VII.

In the matter of ___________, Complainant v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration Agency), Appeal No.: 0120133080, the EEOC concluded 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.” (See EEOC Decision, Pg. 6).

What implications does this decision have on potential claims of sexual orientation discrimination and employers? According to this EEOC decision, any claims for sexual orientation discrimination is a sex discrimination claim under Title VII.

It is the belief of this writer that the EEOC’s decision is too broad and would create and cause more litigation against employers, rather than protect those employees who are truly discriminated against based on sexual orientation.

Imagine the flood gates of litigation that can occur if a heterosexual male is passed over for a promotion or a salary increase and such promotion or salary increase goes to a heterosexual woman, under this EEOC decision, that heterosexual male could potentially file a Title VII claim for sexual orientation discrimination of being a heterosexual male and his claim would fall under sex discrimination under Title VII. This scenario would cover anyone claiming their sexual orientation is the basis for discrimination.

Although the EEOC recently issued this decision, the Courts have not yet ruled on this broad definition. However, for now and according to the EEOC decision, employers should be aware that allegations of sexual-orientation discrimination equals allegations of sex discrimination under Title VII.

1 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, available at http://www.americanbar.org/content/dam/aba/administrative/sexual_orientation/eeoc-lgbt-title-vii-decision.authcheckdam.pdf.

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