The U.S. Equal Employment Opportunity Commission (EEOC) recently ruled that a claim of discrimination on the basis of sexual orientation states a claim of discrimination on the basis of sex within the meaning of Title VII of the Civil Rights Act of 1964.

The complainant, an air traffic controller who worked for the Federal Aviation Administration (FAA) in a temporary position, alleged that the FAA had discriminated against him on the basis of sex when it did not select him for a permanent position as a Front Line Manager. The complainant alleged that he was not selected because he is gay, and that his supervisor had made negative comments about his sexual orientation. After concluding that the complainant’s complaint was timely, the EEOC proceeded to address its jurisdiction over his sex discrimination claim.

The EEOC acknowledged that Title VII does not explicitly prohibit discrimination based on sexual orientation. Nevertheless, it concluded that the complainant had stated a claim of sex discrimination because he alleged that the FAA had relied on sex-based considerations and had taken his sex into account when it allegedly considered his sexual orientation in declining to hire him for a permanent position. The EEOC did not limit its conclusion to the particular allegations of the case. Instead, it ruled that “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.”

The EEOC discussed several ways in which discrimination based on sexual orientation can constitute discrimination on the basis of sex. An employee can show that sexual orientation discrimination is sex discrimination:

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

The EEOC also noted that there may be other theories for establishing that sexual orientation discrimination is sex discrimination, on which it expressed no opinion.

Although this claim arose under the section of Title VII addressing federal employees and applicants, the EEOC noted that that provision “is analogous to the section of Title VII governing employment discrimination in the private sector.” Indeed, in reaching its decision the EEOC relied upon numerous federal court decisions involving Title VII claims against private employers. The EEOC is likely to seek to apply its decision to private employers, though it is unclear whether and to what extent federal courts will rely on it.

Especially in light of the fact that 22 states and the District of Columbia have laws explicitly prohibiting discrimination based on sexual orientation, employers should review their EEO, anti-discrimination, and anti-harassment policies to ensure their compliance with the law. Employers should also take steps to ensure that their employees are well trained in this area of the law.