EEOC Says Sexual Orientation Discrimination Is Already Illegal

This is my first post (other than the blog carnival) since I got a concussion. A lot has happened in the interim, so I have a lot to catch up on. This week I want to cover what I think is probably the most important development in discrimination law in a long time. That is, the EEOC has issued a decision that Title VII's prohibition against sex discrimination also prohibits sexual orientation discrimination.

But this is nothing new, you say? Sure, EEOC has been opining that transgender employees are protected under sexual stereotyping. They've also overturned "unable to determine" dismissal letters, ordering investigators to process sexual orientation discrimination charges under the category of sexual stereotyping. 

What's different is that this is the first time the agency has recognized that sexual orientation discrimination is flat-out sex discrimination. That is, the employer is treating the employee differently because of their gender. Here's the reasoning:

Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. "Sexual orientation" as a concept cannot be defined or understood without reference to sex. A man is referred to as "gay" if he is physically and/or emotionally attracted to other men. A woman is referred to as "lesbian" if she is physically and/or emotionally attracted to other women. Someone is referred to as "heterosexual" or "straight" if he or she is physically and/or emotionally attracted to someone of the opposite-sex.  Sexual orientation refers to the sex of those to whom one is sexually and romantically attracted." It follows, then, that sexual orientation is inseparable from and inescapably linked to sex and. therefore, that allegations of sexual orientation discrimination involve sex-based considerations. One can describe this inescapable link between allegations of sexual orientation discrimination and sex discrimination in a number of ways.  

Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee's sex. For example, assume that an employer suspends a lesbian employee for displaying a photo of her female spouse on her desk , but does not suspend a male employee for displaying a photo of his female spouse on bis desk. The lesbian employee in that example can allege that her employer took an adverse action against her that the employer would not have taken had she been male. That is a legitimate claim under Title VII that sex was unlawfully taken into account in the adverse employment action. ("Such a practice does not pass the simple test of whether the evidence shows 'treatment of a person m a manner which but for that person's sex would be different.'"). The same result holds true if the peron discriminated against is straight. Assume a woman is suspended because she has placed a picture of her husband on her desk but her gay colleague is not suspended after he places a picture of his husband on his desk. The straight female employee could bring a cognizable Title VII claim of disparate treatment because of sex.

(citations omitted).

Put more simply, sexual orientation discrimination is sex discrimination because, if Jane loves Janice and she is discriminated because of that, had Jane been a man and loved Janice she would not have been subjected to discrimination. But for her gender, Jane would not have been discriminated against for loving Janice.

This is an argument I've made for years and people looked at me like I was insane. It's good to be vindicated.

This goes well beyond sexual stereotyping, which didn't cover all sexual orientation claims; it only applied where gay and lesbian employees didn't fit into stereotypical gender roles.

Will the courts apply this reasoning? I'm guessing some will and some won't, and we'll be back in front of the Supreme Court. If you ever thought that your choice of President doesn't matter, think of those Supreme Court appointments. What will the Court look like when this case finally gets to them? That's up to you.