On July 15, 2015, the United States Equal Employment Opportunity Commission (“EEOC”), in its role as an appellate tribunal reviewing the disposition by a federal agency of a claim of discrimination, issued a decision in which it held that “allegations of discrimination on the basis of [a complainant’s] sexual orientation state a claim of discrimination on the basis of sex within the meaning of Title VII [of the Civil Rights Act of 1964]. Complainant v. Anthony Foxx, Secretary, Department of Transportation, EEOC Appeal No. 0120133080, slip op. at 14-15 (July 15, 2015).

The EEOC’s holding is binding on all federal government departments and agencies. By and through this holding, complaints of sexual orientation discrimination by federal employees are cognizable under Title VII. The EEOC’s holding is not binding on private employers, but may be used by lawyers advocating in the nation’s federal and state courts for the application of the holding to private employers.

Prior to the EEOC’s holding in Foxx, complaints of sexual orientation discrimination by employees of private employers and state and municipal governments already were cognizable under state law in twenty-three states, including New Jersey, Delaware, and New York. Such claims are not cognizable under Pennsylvania state law, but are recognized by numerous counties and municipalities within that state, including but not limited to in Philadelphia, Harrisburg, and Pittsburgh.

In Foxx, the complainant, an employee of the Federal Aviation Administration (“FAA”), filed a formal Equal Employment Opportunity (“EEO”) complaint alleging sexual orientation discrimination and retaliation, both in violation of Title VII. Id., slip op. at *1-*2. Neither the FAA nor the EEOC reached the merits of the complainant’s claim. The FAA held, among other things, that the EEOC had no jurisdiction over the complainant’s claim of sexual orientation discrimination. Id., slip op. at *2-*3.

The EEOC reversed the FAA’s holding that it had no jurisdiction over the complainant’s claim of sexual orientation discrimination, noting that it “appl[ies] the words of the statute Congress has charged us with enforcing.” Id., slip op. at *13. It held 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.

When an employee raises a claim of sexual orientation discrimination as sex discrimination under Title VII, the 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 for purposes of Title VII coverage of a sexual orientation claim is the same as any other Title VII case involving allegations of sex discrimination – whether the agency has relied on sex-based considerations or take[n] into account when taking the challenged employment action.

In the case before us, we conclude that Complainant’s claim of sexual orientation discrimination alleges that the Agency relied on sex-based considerations and took his sex into account in its employment decision[.] . . . The Complainant, therefore, has stated a claim of sex discrimination. 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 account in an employment action necessarily alleges that the agency took his or her sex into account.

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. A man is referred to as “gay” if he is physically and/or emotionally attracted to other men. A woman is referred to as “lesbian” if she is physically and/or emotionally attracted to other women. Someone is referred to as “heterosexual” or “straight” if he or she is physically and/or emotionally attracted to someone of the opposite sex. It follows, then, that sexual orientation is inseparable from and inescapably linked to sex and, therefore, that allegations of sexual orientation discrimination involve sex-based considerations.

Id., slip op. at *5-*6 (citations, internal quotations and footnotes omitted).

The EEOC further held that “Sexual orientation discrimination is sex discrimination”, Id., slip op. at *6, because (1) “it necessarily entails treating an employee less favorably because of the employee’s sex”, Ibid.; see also Id., slip op. at *6-*7, (2) “it is associational discrimination on the basis of sex. That is, an employee alleging discrimination on the basis of sexual orientation is alleging that his or her employer took his or her sex into account by treating him or her differently for associating with a person of the same sex”, Id., slip op. at *8, see also Id., slip op. at *8-*9, and (3) “it necessarily involves discrimination based on gender stereotypes.” Id., slip op. at *9, see also Id., slip op. at *9-*11. It concluded by acknowledging that

Congress may not have envisioned the application of Title VII to these situations. But as a unanimous [Supreme] Court stated in Oncale v. Sundowner Offshore Services, Inc., “statutory prohibitions often go beyond the principal evil [they were passed to combat] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” 523 U.S. 75, 79, 78-80 (1998) (holding that same-sex harassment is actionable under Title VII). Interpreting the sex discrimination prohibition of Title VII to exclude coverage of lesbian, gay or bisexual individuals who have experienced discrimination on the basis of sex inserts a limitation into the text that Congress has not included.”

Id., slip op. at *13 (footnote omitted).

The EEOC issued its decision in Foxx less than three weeks after the Supreme Court issued its decision in Obergefell et al. vs. Hodges, Director, Ohio Department of Health, et al., in which the Court held that same sex couples have a right to marry that is secured by the Fourteenth Amendment to the United States Constitution. Our analysis of the Obergefell decision, with a link to the Supreme Court’s decision, may be found here.