Over the years, Congress has repeatedly considered amending Title VII of the Civil Rights Act of 1964 to prohibit discrimination on the basis of sexual orientation. However, time and time again, our legislators have decided not to add such protections to the law.
Not surprisingly, courts have rarely found sexual orientation discrimination to be actionable, but this has not always been the case. Some courts have allowed claims to proceed based upon the notion that sexual orientation discrimination was really just discrimination on the basis of sex.
While this has been the minority position, a recent sexual orientation discrimination ruling from the Equal Employment Opportunity Commission (EEOC) has the potential to change that.
EEOC Rules that Sexual Orientation Discrimination is Actionable
In John Doe v. Foxx, the plaintiff claimed that he was passed over for a promotion because of his sexual orientation, based largely on derogatory comments made by his supervisor. On appeal, the EEOC found that such discrimination was actionable under Title VII.
Sexual Orientation Discrimination is Sex Discrimination
The EEOC reasoned that sexual orientation discrimination is really just disguised sex discrimination:
“Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”
The question is whether the employer “relied on sex-based considerations” or took “gender into account” when taking the adverse employment action.
As the EEOC explained, if a male or female suffered an adverse employment action for displaying a picture of their same sex partner, it would be actionable sex discrimination if a heterosexual employee was allowed to display a picture of their opposite sex partner without any consequences.
EEOC Accepts Gender Stereotyping Argument
Some courts have found sexual orientation actionable because, according to them, it necessarily involves an employee’s failure to conform to gender stereotypes or gender norms. In other words, there is an expected way that men and women should live their lives and discrimination for failing to do so (e.g., by being in a same-sex relationship) is sex discrimination.
Though this was certainly the minority viewpoint, the EEOC agreed with it in reaching its decision.
Regardless of the agency’s reasoning, we can take comfort in knowing that protection is coming for people who have been mistreated at work because of their sexual orientation.
Call a New Orleans Employment Lawyer
If you’ve been the victim of sexual orientation discrimination or any other kind of prohibited discrimination, The Mahone Firm is here to help. Call (504) 564-7342 to speak with a business litigation attorney about your potential employment case.