This week the Human Rights Campaign sent letters to six federal agencies calling attention to the need for explicit protections from discrimination on the basis of sexual orientation under Title VII, Title IX, and the Fair Housing Act similar to protections now in place on the basis of gender identity and transgender status. HRC's letters come on the heels of two suits filed in federal court by the Employment Opportunity Commission (EEOC) on behalf of workers who experienced harassment and discrimination because of their sexual orientation.
In both of these cases, EEOC v. Scott Medical Health Center and EEOC v. Pallet Companies, dba IFCO Systems NA, the Commission filed under Title VII charging that the discrimination faced by the workers was a form of unlawful sex discrimination. In Scott, the Commission charged that a gay male employee was subjected to harassment due to his sexual orientation, charging that the worker’s manager repeatedly used various anti-LGBT epithets when referring to him and made other highly offensive comments related to his sexuality. The EEOC further charged that no action was taken to end the harassment when it was brought to the attention of the clinic director. Similarly, in IFCO Systems, the EEOC charged that a lesbian employee was harassed by her supervisor because of her sexual orientation. The Commission charged that the supervisor made numerous comments to her regarding her sexual orientation and appearance and made sexually suggestive and lewd gestures towards the employee. The employee was terminated following a formal complaint regarding the harassment to management and the employee harassment hotline.
These cases reflect the EEOC's now well-established policy regarding sexual orientation discrimination following last summer's decision in Baldwin v. Foxx. In Baldwin, the EEOC ruled in favor of a Department of Transportation employee who alleged that he did not receive a promotion because of his sexual orientation. The EEOC found that Title VII prohibits employers from relying on “sex-based considerations” when making personnel decisions and that these protections apply equally to LGBT individuals under Title VII. The agency concluded that the Department of Transportation had wrongfully relied on sex-based considerations when supervisors declined to promote the complainant due to his sexual orientation. The EEOC held that discrimination on the basis of sexual orientation constitutes sex discrimination under Title VII because sexual orientation is inseparably linked to sex-based considerations. The Commission clearly stated 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 further clarified that “[a] complainant alleging that an agency took his or her sexual orientation into account in an employment action necessarily alleges that the agency took his or her sex into account.”
In letters to the Departments of Education, Justice, Labor, HHS, HUD and OMB, HRC urged these agencies to defer to the EEOC regarding the scope of coverage under Title VII as they have done in the past. Following the EEOC's 2012 decision in Macy v. Holder, which held that discrimination on the basis gender identity is unlawful sex discrimination under Title VII, multiple agencies, including the Department of Justice, published clear policies implementing the decision. This EEOC policy is not a novel outlier. It reflects a clear legal trajectory in federal courts recognizing sexual orientation discrimination as unlawful under Title VII.