Title VII Bars Sex Orientation Bias, EEOC Contends

Daily Labor Report® is the objective resource the nation’s foremost labor and employment professionals read and rely on, providing reliable, analytical coverage of top labor and employment...

By Kevin McGowan

Jan. 7 — Employment bias based on an individual's sexual orientation is sex discrimination prohibited by Title VII of the 1964 Civil Rights Act, the Equal Employment Opportunity Commission said in an amicus brief filed in a federal appeals court Jan. 6.

In a brief filed in the U.S. Court of Appeals for the Eleventh Circuit, the EEOC said a district court erred in dismissing the Title VII claims of Barbara Burrows, a lesbian former Florida community college administrator who alleged she was treated differently because of her sexual orientation and same-sex marriage. The lower court rejected Burrows's various bias claims on grounds she essentially was alleging sexual orientation discrimination, which it said Title VII doesn't cover.

No federal appeals court has ever ruled that Title VII's ban on sex discrimination covers bias based on sexual orientation. But at least two appeals courts—the Fifth and Sixth circuits—have ruled that lesbian, gay, bisexual or transgender workers who show bias based on their failure to conform with gender stereotypes raise Title VII sex discrimination claims.

In an agency decision involving a federal employee, the EEOC last July ruled for the first time that Title VII prohibits discrimination based on sexual orientation, partly because such bias necessarily is based on the person's failure to conform with gender stereotypes (137 DLR AA-1, 7/17/15).

The EEOC also has said the agency's enforcement priorities include advancing the rights of LGBT people under existing law without waiting for Congress expressly to prohibit employment bias based on sexual orientation and gender identity.

Arguments Track Agency Decision

The EEOC's amicus brief tracks the points made in its federal employment decision. Sexual orientation discrimination “necessarily involves sex stereotyping” because it “results in the adverse treatment of individuals because their orientation does not conform to heterosexually defined gender norms,” the agency said.

Bias based on sexual orientation also constitutes gender-based associational discrimination that independently violates Title VII, the EEOC said. The agency pointed out that in analogous cases involving race, courts have ruled Title VII prohibits discrimination based on an individual's association with someone of a different race, such as an interracial marriage.

Title VII generally prohibits “sex-based considerations” in the workplace, and bias based on sexual orientation “necessarily requires such impermissible consideration of a person's sex,” the EEOC said.

Congress's Failure to Act No Bar

That Congress in the 1964 Civil Rights Act never mentioned sexual orientation doesn't foreclose its coverage under the act's ban on sex discrimination, the EEOC said. The U.S. Supreme Court decisions recognizing sexual harassment and same-sex harassment as Title VII claims show the act's meaning evolves and Title VII's reach isn't confined to what legislators considered in 1964, the agency said.

“Although it is true that Congress has not amended Title VII or passed new legislation to protect against sexual orientation discrimination explicitly, the Supreme Court has made clear that the outcome of legislative efforts to amend Title VII over the years says nothing about what the existing statute prohibits,” the EEOC said.

The commission said it also plans to file an amicus brief in Evans v. Georgia Regional Hospital, No. 15-15234 (11th Cir. 2015), another pending Eleventh Circuit case that asks if sexual orientation discrimination is a cognizable Title VII claim.

In Burrows's case, the EEOC said the Eleventh Circuit should reject the district court's “unduly restrictive” reading of Title VII.

An “increasing number” of courts, as well as the EEOC, recognize that “sexual orientation discrimination claims necessarily involve illegal sex stereotyping, illegal gender-based associational discrimination, and impermissible consideration of a plaintiff's sex,” placing such claims “squarely within” Title VII's sex discrimination ban, the agency said.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com