EEOC Rules Discrimination Based on Sexual Orientation Violates Title VII

An employee alleges a claim for discrimination based on sexual orientation but sexual orientation isn’t mentioned under Title VII. Does the employee have a viable Title VII claim? According to the Equal Employment Opportunity Commission’s (EEOC) recent opinion in Complainant v. Foxx, E.E.O.C., Appeal No. 0120133080 (7/16/15), the answer is “Yes.” In the view of the EEOC, “allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex,” and are therefore covered by Title VII.
The Complainant in this case, a male Air Traffic Controller for the Federal Aviation Administration Agency, filed an EEO complaint alleging failure to promote based on sexual orientation. According to the Complainant, the decisionmaker made several negative comments about his gay status such as, “We don’t need to hear about that gay stuff,” when the Complainant described a visit to New Orleans with his partner, as well as called him “a distraction in the radar room” whenever he spoke about his partner. The FAAA reviewed the failure to promote claim and determined that the sexual orientation portion could be processed only under internal procedures and not through the EEO complaint process appropriate for Title VII claims. The EEOC disagreed.
In its appeals decision, the EEOC acknowledged that sexual orientation is not explicitly listed in Title VII as a prohibited basis for employment actions. Nevertheless, it explained, the question for purposes of Title VII is whether the agency has “relied on sex-based considerations” or “taken gender into account” when taking the challenged employment action. It concluded that because sexual orientation is inherently a “sex-based consideration,” a claim for discrimination based on sexual orientation is a claim for discrimination based on sex.