On July 23, 2015, the EEOC ruled that discrimination based upon an applicant’s or employee’s sexual orientation is a violation of Title VII’s gender discrimination protection. While the EEOC had previously argued with success that gender stereotyping is unlawful discrimination (e.g. discriminating on the basis of effeminacy for men or masculinity for women), this is the first time the agency has taken the position that sexual orientation is itself a protected category.
Notably, Title VII does not mention sexual orientation. As a result, courts have consistently dismissed employment discrimination claims based upon sexual orientation where there was no state or municipal regulation specifically extending protection to sexual orientation. According to the EEOC, “[T]he question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. It is not.” Rather, the question, according to the EEOC, is whether gender is a consideration when taking an employment action. In sum, the EEOC’s position is that it is a gender stereotype for men to be attracted to women and women to be attracted to men. Taking an adverse action against an employee for not conforming to this stereotype is a violation of Title VII.
Religious organizations who object to same-sex relationships on religious grounds are likely to be excepted. This is similar to the exception already provided under Title VII, which allows religious organizations to make employment decisions based upon their religious beliefs.
The EEOC’s most recent position has yet to be considered by a court. Moreover, state and federal legislation regarding this issue remains pending. GKH will provide updates as this issue develops.
Our recommendation continues to be that employment decisions should be based upon well-documented legitimate non-discriminatory reasons (e.g. qualifications, performance and disciplinary record), and that harassment or bullying for whatever reason should never be tolerated.