Hunton Employment & Labor Perspectives

In its recent decision in David Baldwin v. Dep’t of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015), the EEOC ruled that discrimination based on sexual orientation is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964, despite the fact that Title VII does not explicitly include sexual orientation or gender identity in its list of protected bases.

Background

David Baldwin worked as a Supervisory Air Traffic Control Specialist for the U.S. Department of Transportation in Miami. He filed a formal EEO complaint with the Federal Aviation Administration (“Agency”) after he was not selected for a permanent position, allegedly because he is gay. He alleged that his supervisor, who was involved in the selection process for the permanent position, made several negative comments about his sexual orientation. The Agency took the position that the complaint was untimely and that the sexual orientation portion of the claim was appealable to the Agency, while the portion of the complaint involving reprisal was appealable to the EEOC.

Opinion

The EEOC’s decision did not address the merits of the claim of discrimination, but it did broadly announce that claims of sexual orientation discrimination fall within the purview of Title VII. Citing the Supreme Court case Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the EEOC stated that Title VII’s prohibition of sex discrimination means that employers may not rely on sex-based considerations or take gender into account when making employment decisions. (Under Title VII, “sex” encompasses both the anatomical differences between men and women and gender, which refers to social roles based on sex.) The EEOC determined that that reasoning “applies equally in claims brought by lesbian, gay, and bisexual individuals under Title VII.”

The EEOC conceded that Title VII does not explicitly mention sexual orientation but found that 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 ‘take[n] gender into account’ when taking the challenged employment action.” The EEOC concluded 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 under Title VII. A complainant alleging that an agency took his or her sexual orientation into account in an employment action necessarily alleges that the agency took his or her sex into account. . . ‘Sexual orientation’ as a concept cannot be defined or understood without reference to sex.”

Impact on Employers

Although private employers are not, strictly speaking, bound by the EEOC’s decision, they should pay close attention. Employers could soon face more or different charges than they have in the past, and the Baldwin decision indicates a willingness of the EEOC to find cause and perhaps litigate this type of discrimination claim. Further, courts may defer to the EEOC’s opinion on this issue. To err on the side of caution, employers should consider expanding their policies to prohibit sexual orientation discrimination (and harassment) in the same manner as other types of discrimination. In addition, employers should conduct training to ensure that managers are aware of those policies.