The EEOC has found that workplace discrimination against lesbian, gay, and bisexual workers violates Title VII of the Civil Rights Act of 1964. On July 15, 2015, the EEOC reversed the dismissal of a sex discrimination complaint filed by an air traffic controller against the U.S. Department of Transportation’s Federal Aviation Administration. The complainant claimed that he was not selected for a permanent managerial position because he is gay.

After learning that he was not selected for a permanent managerial position in July 2012, the complainant contacted an EEO counselor in August 2012, and he then filed a formal EEO complaint in December 2012, alleging that the agency discriminated against him on the basis of sex (male and sexual orientation). The complainant claimed that he was not selected for the permanent managerial position, because his supervisor “who was involved in the selection process . . . made several negative comments about . . . [his] sexual orientation,” including telling the complainant he was “a distraction in the radar room” when the complainant mentioned his partner. In dismissing the complaint, the agency maintained that “the 45-day limitation period in which [the] [c]omplainant should have contacted a counselor started to run in October 2010,” and thus the complainant’s first contact with the EEO counselor in August 2012 was untimely. The agency did not rule on the merits of the complaint.

In reversing the agency’s 2013 dismissal, the EEOC first concluded that the complainant’s initial contact with an EEO counselor in August 2012 was timely because the complainant “could only reasonably have suspected that discrimination occurred after he learned he was not selected for conversion to the permanent . . . [managerial] position [in July 2012].” Moreover, in the most important aspect of the decision, the EEOC concluded that the complainant’s “allegations of discrimination on the basis of his sexual orientation state a claim of discrimination on the basis of sex within the meaning of Title VII.”

While acknowledging that Title VII does not explicitly list “sexual orientation” as a prohibited basis for employment discrimination claims, the EEOC reasoned that Title VII nevertheless covers “sexual orientation” claims because “as any other Title VII case involving allegations of sex discrimination,” the inquiry in a sexual orientation claim is whether an employer has “‘relied on sex-based consideration’ or ‘take[n] gender into account’ when taking the challenged employment action.”

In further support of its ruling, the EEOC noted the following:

• “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.”
• “Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”
• “Sexual orientation discrimination is also sex discrimination because it is associational discrimination on the basis of sex. That is, an employee alleging discrimination on the basis of sexual orientation is alleging that his or her employer took his or her sex into account by treating him or her differently for associating with a person of the same sex.”
• “Sexual orientation discrimination also is sex discrimination because it necessarily involves discrimination based on gender stereotypes.”

The EEOC explained that “[a]n employee could show that the sexual orientation discrimination he or she experienced was sex discrimination” because:

• “it involved treatment that would not have occurred but for the individual’s sex”;
• “it was based on the sex of the person(s) the individual associates with”; and/or
• “it was premised on the fundamental sex stereotype, norm, or expectation that individuals should be attracted only to those of the opposite sex.”

Accordingly, the EEOC concluded that the complainant’s sexual orientation discrimination claim can proceed as a sex discrimination claim under Title VII. Employers are advised to review their policies and procedures to ensure that discrimination or harassment on the basis of sexual orientation is properly addressed.