On January 6, 2016, the EEOC field an amicus brief in Barbara Burrows v. The College of Central Florida arguing, for the first time, that Title VII of the Civil Rights Act of 1964 protects workers against sexual orientation discrimination. The brief begins by acknowledging that the EEOC’s position has evolved over time citing its historic ruling in July that workplace sexual orientation discrimination is illegal under federal law.  The EEOC’s argument can be summarized as follows.

First, the EEOC argues that Title VII prohibits employers from discriminating against individuals in employment matters because of an individual’s sex.  Although Congress may not have considered sex discrimination to include sexual orientation, statutory analysis does not end with the consideration of Congress’s initial intentions.  Ultimately, it’s the law that governs not the legislator’s intent when passing the law.

Second, sexual orientation discrimination necessarily involves sex stereotyping, as it results in the adverse treatment of individuals because their orientation does not conform to heterosexually defined gender norms, the stereotype of opposite sex attraction.  Intentional discrimination on the basis of the gender of an individual’s preferred partner-whether that individual is lesbian, gay, bisexual, or straight-necessarily implicates stereotypes relating to “proper” sex-specific roles in romantic and/or sexual relationships.  Even if the employee exhibits no other gender nonconformity, when his or her sexual orientation gives risk to discrimination, the discrimination violates Title VII.  Because such discrimination is at heart based on gender stereotypes, it violates Title VII’s prohibition against discrimination against employees because of sex.

The EEOC then advances the argument that sexual orientation discrimination violates Title VII’s prohibition against sex discrimination because it treats individuals differently based on the sex of those with whom they associated.  It is a well settled principle of law that where a plaintiff claims discrimination based upon an interracial marriage or association, he alleges he has been discriminated against because of his race.  Thus, 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.

Finally, the EEOC argues that sexual orientation discrimination is inherently sex based discrimination because sexual orientation cannot be understood without referring to an individual’s sex.

Takeaways:

• The EEOC acknowledges that “its understanding of Title VII’s application to claims of sexual orientation discrimination –like society’s understanding of homosexuality more generally – has evolved over time.”  As demonstrated by the cases cited by the EEOC, its position has been recognized by numerous courts in finding that Title VII’s protections cover sexual orientation discrimination.
• Nineteen states, the District of Columbia, and Puerto Rick have statutes that protect against both sexual orientation and gender identity.  Several state statutes already explicitly include the protection.  This trend continues to advance.  Employers should consider adopting their own policies prohibiting discrimination based upon sexual orientation.
• Train employees that company policies prohibit all forms of discrimination, including those based on sexual orientation or gender identity.

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