EEOC Extends Title VII to Protect Against Sexual-Orientation Discrimination

Owen H. Laird

In a recent decision, the Equal Employment Opportunity Commission (“EEOC”) unexpectedly extended Title VII of the Civil Rights Act of 1964 (“Title VII”) to protect against sexual-orientation discrimination. The EEOC’s decision applies to claims brought by federal employees and all EEOC investigations of private employers.  The EEOC, the federal agency tasked to implement Title VII, has 53 field offices across the United States.

Title VII protects individuals against discrimination based on race, color, religion, sex, and national origin, but does not recognize sexual orientation protection. Complainants attempted to pursue claims of sexual orientation discrimination under Title VII by way of perceived gender-stereotyping with some success, but by and large the EEOC dismissed these complaints. Similarly, courts across the country generally have held that Title VII does not protect against sexual orientation discrimination. Although many states and local municipalities have passed anti-discrimination laws that are more expansive than Title VII, for the millions of Americans who live in those that do not, Title VII is the only legal protection available against discrimination in the workplace.

This decision, written by Bernadette Wilson on behalf of the EEOC’s Executive Secretariat, concerned a complaint brought by David Baldwin, an air traffic controller working for the Federal Aviation Administration, alleging that his supervisors discriminated against him in the workplace because of his sexual orientation. As a federal employee, Mr. Baldwin was only able to pursue his Title VII action at the EEOC.

The EEOC ruled that it had jurisdiction to hear Mr. Baldwin’s claim because sexual orientation discrimination “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.” Not only does this decision allow Mr. Baldwin’s claim to proceed, but it clearly demonstrates the EEOC’s position that all claims of sexual orientation discrimination are a of sex discrimination. As a result, both public-sector and private-sector employees can rely on this decision to support claims of sexual orientation discrimination at the EEOC.

This decision is a particularly significant development: the EEOC is the largest and most important anti-discrimination agency in the United States, and this change of policy not only expands the protection of Title VII to millions, but may well prompt other state and local agencies to reexamine their jurisdiction over claims of sexual orientation discrimination.  However, the question of whether circuit courts will follow this decision is yet to be known;  EEOC decisions are persuasive but not binding authority.

Along with the Supreme Court’s recent holding recognizing gay marriage, the EEOC’s decision to provide protection against sexual orientation discrimination is a major step toward providing equal protections to gay and lesbian individuals in America. As we recently wrote, it is critical that we continue extending the rights that the majority of Americans already enjoy to those in the LGBT community.

If you think that you have been discriminated against because of your sexual orientation, contact The Harman Firm, LLP.