EEOC Bans Discrimination against Sexual Orientation in the Workplace

On July 16, 2015, the U.S. Equal Employment Opportunity Commission (EEOC) ruled that all job discrimination based on sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964.

This historic 3-2 decision does what Congress and most courts so far have refused to do: ban discrimination against gays in the workplace. Until now, only a handful of states and municipalities have done so.

The ruling came in an appeal by an air traffic controller who had claimed he was discriminated against and denied a promotion in 2012 because he is gay. He filed a claim with the agency, whose staff initially ruled that sexual orientation discrimination was not within the jurisdiction of the agency. He appealed to the commission, which overturned the decision, stating, “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.”

Neither Congress nor the courts have approved this ruling, and it contradicts several federal circuit court rulings that held sexual orientation is not part of Title VII. The EEOC’s views on Title VII are considered persuasive, but not binding, authority on the courts. What remains to be seen is how circuit courts will go along with the EEOC’s interpretation of Title VII. The 6^th Circuit Court has held that Title VII’s prohibition of the basis of “sex” only applies to discrimination on the basis of gender and does not include discrimination based on one’s sexual orientation.

Now is as good of time as any for companies and governmental entities to start thinking about updating their employment policies to reflect this paradigm shift.

Elizabeth Rae-O’Donnell is an attorney in our Livonia office where she concentrates her practice on municipal law, employment and labor law, and education law.  She may be reached at (734) 261-2400 or erae@cmda-law.com.