Sexual Orientation Discrimination Covered By Title VII?

David Baldwin, a Supervisory Air Traffic Control Specialist at Miami International Airport, filed a federal lawsuit because he was denied a promotion to a permanent position as a Front Line Manager.  The lawsuit filed under Title VII alleges that Baldwin was discriminated against because of his sexual orientation.  While many state laws explicitly provide that sexual orientation cannot be the basis of an employment action, Title VII does not contain such language.  Title VII prohibits employment discrimination on the basis of race, color, religion, sex, and national origin.  Baldwin is relying on the EEOC’s July 15, 2015 decision, in his case, that allegations of sexual orientation discrimination state a claim of discrimination under Title VII.

The underlying administrative complaint was filed against the Secretary of the Department of Transportation (Federal Aviation Administration).  Baldwin alleged that he was not selected for a permanent position because he is gay, and that his supervisor, who was involved in the selection process, made several negative comments about his sexual orientation.  For example, in response to Baldwin’s mention of his partner in conversation, the supervisor allegedly said that Baldwin “was a distraction in the radar room” and “[w]e don’t need to hear about that gay stuff.”

The Agency determined that it would process Baldwin’s sexual orientation claim through its internal procedures regarding sexual orientation discrimination, but it would not process the claim through the EEO complaint process.  The EEOC said the Agency was wrong.

According to the EEOC:  When an employee raises a claim of sexual orientation discrimination as sex discrimination under Title VII, the question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions.  It is not.  Rather, the question for purposes of Title VII coverage of a sexual orientation claim is the same as any other Title VII case involving allegations of sex discrimination – whether the agency has relied on sex-based considerations or taken gender in account when taking the challenged employment action.

The EEOC reasoned that sexual orientation is inherently a sex-based consideration, and therefore an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.  The EEOC detailed three ways in which an employee can show that sexual orientation discrimination is sex discrimination under Title VII:  (a) it involved treatment that would not have occurred but for the individual’s sex; (b) it was based on the sex of the person(s) the individual associates with; or (c) it was based on the fundamental sex stereotype, norm or expectation that individuals should be attracted only to those of the opposite sex.

You can read the EEOC’s July 15th decision here.


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