On July 16, 2015, in Complainant v. Anthony Foxx, the U.S. Equal Employment Opportunity Commission (the EEOC) held that discrimination against employees based on sexual orientation is necessarily sex discrimination and is prohibited under Title VII of the Civil Rights Act of 1964. The decision is significant because, while same-sex marriage is now legal across the country after the U.S. Supreme Court’s June 26, 2015 ruling in Obergefell v. Hodges, there is still no federal law expressly prohibiting discrimination on the basis of “sexual orientation” in other contexts, such as housing, lending, or employment. However, if adopted by courts across the country, the EEOC’s reasoning obviates the need for such express legal protection. The EEOC held that sexual orientation discrimination simply is sex discrimination, and thus it is already prohibited by existing law.

The EEOC’s Reasoning in Complainant v. Anthony Foxx

In his complaint, the Complainant alleged that he was not selected for a permanent work position because he was gay. The Complainant alleged that his supervisor would declare, “We don’t need to hear about that gay stuff,” and called the Complainant “a distraction,” when the Complainant mentioned his male partner at work.

The EEOC gave three independent grounds for its holding that “an allegation of discrimination on the basis of sexual orientation is necessarily an allegation of sex discrimination.” First, the EEOC reasoned that sexual orientation discrimination entails treating an employee less favorably because of that employee’s sex. As an example, the EEOC imagined two co-workers, a gay woman and a straight male, each displaying a photo of their female spouses on their desks at work. If only the woman is suspended from work, she can allege that her employer would not have taken that adverse action had she been male.

Second, the EEOC reasoned that sexual orientation discrimination is “associational discrimination on the basis of sex.” Under this theory, an employee can allege that her employer took her sex into account by treating her differently for associating with a person of the same sex. The EEOC points out that, in the context of race discrimination claims, courts consistently hold that associational discrimination claims are valid. For example, a plaintiff clearly states a claim for race discrimination when she alleges that her employer took an adverse action against her based on her interracial marriage.

Finally, building on the its prior rulings, the EEOC explained that sexual orientation discrimination is “premised on the fundamental sex stereotype, norm, or expectation that individuals should be attracted only to those of the opposite sex.” The EEOC had previously held that discrimination against an individual based on sex-stereotyping states a sex discrimination claim under Title VII, based on the U.S. Supreme Court’s landmark 1989 Price Waterhouse decision. In Price Waterhouse, the plaintiff, Ann Hopkins, brought a valid sex discrimination claim when she alleged that she was not offered partnership in her firm because she did not fit her employer’s stereotypical gender expectations of how women should look and behave. See also, Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011)(accepting Title VII sex discrimination claim alleging that supervisor harassment was  motivated by sexual stereotype that men should only marry women).

The Growing Trend Toward Protection of LGBT Workers

While the EEOC decision Complainant v. Anthony Foxx is not binding on any federal or state court, courts frequently defer to federal agencies when they interpret laws that come under the agency’s jurisdiction, as is the case here. Moreover, even before the U.S. Supreme Court’s recent decision on gay marriage or this EEOC decision, courts in Ohio and across the country had adopted the Price Waterhouse reasoning and were becoming increasingly likely to classify sexual orientation discrimination claims as sex discrimination claims under Title VII. For example, inKoren v. Ohio Bell Telephone Co., 2012 WL 3484825 (N.D. Ohio Aug. 14, 2012), the plaintiff alleged that his supervisor discriminated against him based on sex stereotypes because he was married to a man and took his husband’s last name.  In denying the employers’ motion for summary judgment, the court held that the claim was discrimination “because of sex.” However, there are many cases reaching the opposite conclusion and holding that sexual orientation is not protected by Title VII. For example, in Ambirs v. City of Cleveland, 2012 U.S. Dist. LEXIS 164905 (N.D. Ohio 2012) the court granted the employer’s motion to dismiss because the plaintiff, a gay woman, failed to establish that she was a member of a protected class. Whether courts ultimately adopt the EEOC’s position remains to be seen.

In addition, states and cities increasingly have enacted their own statues and ordinances that expressly prohibit sexual orientation discrimination. For example, while Ohio does not have any such statute, the Cleveland Code of Ordinances contains an anti-discrimination provision under which employers of more than four people and labor organizations are prohibited from discriminating on the basis of several classes, including sexual orientation. Cleveland Code Ords. §663.01 et seq. Under this ordinance, if an employer is found to have committed a discriminatory practice and subsequently fails to comply with an order to cease and desist, the employer can be subject to a penalty of up to $1,000 and thirty days in jail. Id. at §663.99.

What This Rule Means for Your Business

To stay ahead of the law and reduce risk, employers should strive to create and maintain work environments free from discrimination against LGBT workers. For example, in light of these recent decisions, employers may want to review their handbooks, non-discrimination policies, and benefits packages with counsel. While the EEOC’s recent decision certainly is not yet “the law of the land,” companies are well advised to recognize the obvious trend in the law to provide protections based upon sexual orientation and identity.