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EEOC Files First Two Lawsuits in Federal Court Alleging Sexual Orientation Bias under Title VII

Two lawsuits filed by the EEOC on March 1, 2016, appear to be part of the Commission’s Strategic Enforcement Plan. Priorities of the plan include “Addressing Emerging and Developing Issues” such as “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions.” On a more granular level, the filings can be understood as an outgrowth of the EEOC’s decision in the federal sector case Baldwin v. Dep’t of Transp., Appeal No. 0120133080 (July 15, 2015).

In Baldwin, the EEOC held that Title VII’s prohibition of sex discrimination includes sexual orientation discrimination because “discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. ‘Sexual orientation’ as a concept cannot be defined or understood without reference to sex.”

The EEOC explained that:

An employee could show that the sexual orientation discrimination he or she experienced was 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. [In a footnote, the EEOC noted that “there may be other theories for establishing sexual orientation discrimination as sex discrimination, on which we express no opinion.”] Agencies should treat claims of sexual orientation discrimination as complaints of sex discrimination under Title VII and process such complaints through the ordinary Section 1614 process.

The two filings will allow the EEOC to test the persuasiveness of its current interpretation of Title VII’s prohibition of sex discrimination, but it is unlikely that either action will clarify the ongoing jurisdictional split on this issue in federal courts. While the appellate circuits have thus far agreed that “Title VII does not prohibit harassment or discrimination because of sexual orientation” (Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir., 2005)), recent decisions at the district court level have embraced the EEOC’s interpretation as articulated in Baldwin. (See Videckis v. Pepperdine Univ. 2015 WL 8916764 (C.D. Cal.); Isaacs v. Felder Services, LLC, 2015 WL 6560655 (M.D. Ala.) (agreeing with the EEOC’s position that “claims of sexual orientation–based discrimination are cognizable under Title VII.”)) Moreover, it is not inconceivable that some circuit courts might reverse their positions on this issue; the Ninth Circuit could be a prime candidate for such a reversal given that it has expressly applied heightened scrutiny to equal protection claims involving sexual orientation. (SmithKline Beecham Corp. v. Abbot Laboratories, 740 F.3d 471, 481 (9th Cir. 2014).)

Summary

Beyond the ongoing disagreement between federal courts on this issue, these two EEOC lawsuits should not have any effect on sexual orientation discrimination claims premised on state law. Many states have enacted statutory prohibitions on employment discrimination on the basis of sexual orientation. Most plaintiffs in states that have enacted such statutes are unaffected by the gap in Title VII regarding discrimination on the basis of sexual orientation; so long as they meet the applicable procedural requirements, such plaintiffs have a viable remedy under state law.

© 2021 Wilson ElserNational Law Review, Volume VI, Number 64
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About this Author

Dean Rocco, Employment Attorney, Wilson Elser Law FIrm
Partner

Dean Rocco is co-chair of Wilson Elser’s national Employment & Labor practice. He represents employers of all types and sizes across the country as well as executives and members of management. He advises clients on issues such as managing employees with disabilities and medical leave rights, building sound personnel policies and complying with workplace regulations. Dean maintains a significant practice defending employers from lawsuits alleging workplace harassment, denials of disability or medical leave rights, unlawful termination of employment, and wage and hour...

213.330.8922
Alex Kaplan, Wilson Elser, Litigation Management Lawyer, Risk Mitigating Attorney
Associate

Alex Kaplan assists clients in preventing, mitigating and managing exposure through risk, crises and litigation management. Working through the firm’s dynamic operating model, he draws on the collective experience and resources of the entire firmin realizing desired legal outcomes. Alex believes that precise advocacy is effective advocacy, and that well-informed, reasonable arguments are more persuasive than reactive tactics.

Alex served as a law clerk with the Los Angeles County District Attorney, Sex Crimes Division, and two consecutive...

213.330.8918
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