Hunton Employment & Labor Perspectives

The Equal Employment Opportunity Commission (“EEOC”) is asking the Eleventh Circuit Court of Appeals to recognize that discrimination based on an employee’s sexual orientation constitutes unlawful discrimination “because of . . . sex,” in violation of Title VII of the Civil Rights Act of 1964.

The EEOC advances this argument in an amicus brief in support of Barbara Burrows, a lesbian college professor and administrator who claims she was subjected to sex discrimination by her former employer, the College of Central Florida, based on her same-sex marriage and how she looked and acted. The District Court granted summary judgment in favor of the College, holding that Burrows’s sex discrimination claim was “merely a repackaged claim for discrimination based on sexual orientation, which is not cognizable under Title VII.” Burrows appealed, and the case is currently pending before the Eleventh Circuit.

Title VII prohibits an employer from discriminating against an employee “because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). Title VII does not explicitly prohibit sexual orientation discrimination, and no U.S. Circuit Court of Appeal has held that Title VII prohibits sexual orientation discrimination. However, in support of Burrows’s appeal, the EEOC argues that discrimination based on sexual orientation violates Title VII prohibition against sex discrimination for three reasons:

1. “Sexual orientation discrimination necessarily involves sex stereotyping.” Courts across the country, including the United States Supreme Court, have held that discrimination based on sex stereotypes (how a man or woman should act) constitutes sex discrimination under Title VII. Citing these cases, the EEOC argues that “an employer who discriminates because of an employee’s homosexuality necessarily discriminates because of that employee’s failure to conform to a gender-based stereotype: the stereotype of opposite-sex attraction.”

2. “Sexual orientation discrimination constitutes associational discrimination.” According to the EEOC, “[s]exual orientation discrimination also violates Title VII’s prohibition against sex discrimination because it treats individuals differently based on the sex of those with whom they associate.” In support of this argument, the EEOC drew comparisons to cases involving race discrimination arising out of interracial relationships.

[T]he analysis of race-based associational discrimination . . . should apply with equal force to claims of sex-based associational discrimination.  If a plaintiff is in a relationship with someone of the same sex, and an adverse employment consequence results from that relationship, discrimination has occurred “because of the plaintiff’s sex,” in violation of Title VII.

(Internal brackets omitted.)

3. “Sexual orientation discrimination is, by definition, discrimination ‘because of . . . sex.” In its third and final argument, the EEOC asserts that sexual orientation discrimination is sex-based discrimination “because sexual orientation cannot be understood without reference to an individual’s sex (in conjunction with the sex of those to whom the individual is physically and/or emotionally attracted.)” According to the EEOC, “[i]f an employer treats an employee less favorably than it would treat a comparable employee who, aside from his or her sex, is identical in all respects (including, for example, the sex of that employee’s spouse), the employer discriminates against the employee “because of sex.”

The EEOC’s Strategic Enforcement Plan lists coverage of LGBT individuals under Title VII’s sex discrimination provisions as an enforcement priority for fiscal years 2013 through 2016, and, in its amicus brief in support of Barbara Burrows, the EEOC states that it will also file an amicus brief in another action currently pending before the Eleventh Circuit that involves the same issue.

Many states have laws that expressly prohibit discrimination based on an employee’s sexual orientation. Employers in states without such laws should closely watch Burrows v. College of Central Florida and the EEOC’s other enforcement efforts, which may clarify the scope of Title VII’s protections.