Until July 15, I was very comfortable saying that Alabama employers (with the exception of those engaging in Federal contract work) were not prohibited by law from discrimination based on Sexual Orientation.  On July 15, the EEOC, in a 3-2 decision, found that discrimination based on sexual orientation is a violation of Title VII.  In this case, the Complainant, a Supervisory Air Traffic Control Specialist, who worked in Miami, alleged that the FAA discriminated against him based on his sex and sexual orientation when he was not promoted.  He alleged that he was not promoted because he is gay, and his supervisor made negative comments about his sexual orientation, such as:

  1. When Complainant mentioned that he and his partner went to Mardi Gras, the supervisor said, “We don’t need to hear about that gay stuff.”
  2. The supervisor told him on a number of occasions that he was a “distraction in the radar room” when his participation in conversations included mention of his male partner.

The majority found that “Title VII’s prohibition of sex discrimination means that employers may not ‘rel[y] upon sex-based considerations’ or take gender into account when making employment decisions…This applies equally in claims brought by lesbian, gay and bisexual individuals under Title VII….Indeed, we conclude 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.  A complainant alleging that an agency took his or her sexual orientation into an employment action necessarily alleges that the agency took his or her sex into account.”  You can read the entire Decision here.

Practice pointers.  Although this case involved a federal agency, the FAA, the language in the Decision, in my opinion, makes it clear that the EEOC intends the Decision to apply to ALL employers who are subject to the EEOC’s jurisdiction.  Several circuit courts have previously issued opinions contrary to this EEOC Decision.  Although EEOC Decisions are not binding on the courts, they are persuasive authority.  It will ultimately be up to the courts to decide if they will accept the EEOC’s position, or reject it.  This will probably lead to another case winding its way to the Supreme Court for a final decision.

What does this mean for employers in Alabama?  I believe that there will be a number of EEOC charges filed, and, once the EEOC completes the investigations, a number of lawsuits filed in Alabama, and around the country, based on Sexual Orientation discrimination, harassment and/or retaliation.  In the eyes of the EEOC, gay, lesbian, bisexual and transgendered employees are protected.  Comments, like the ones made in this case, whether they be oral, email, on social media, or communicated in any other way, can lead to potential liability.  Employers in Alabama need to consider the potential consequences should any adverse employment action be taken based on Sexual Orientation.