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EEOC lawsuits may change how employers handle sexual orientation issues

by Brent E. Siler

The Equal Employment Opportunity Commission (EEOC) recently filed its first lawsuits alleging that discrimination based on sexual orientation is sex discrimination under Title VII of the Civil Rights Act of 1964. While the EEOC has successfully filed sex discrimination claims on behalf of LGBT employees in the past, the recent lawsuits are the first time the agency has argued that sexual orientation discrimination is the same as sex discrimination in cases that would apply to private employers. The lawsuits should give employers notice that discrimination against LGBT employees is a priority for the EEOC and will be subject to increased scrutiny in the years to come. 

The lawsuits are anything but surprising. At one time, the EEOC consistently took the position that sexual orientation discrimination was not actionable under Title VII, but its position began to evolve as issues related to sexual orientation became more common. In 2012, the EEOC identified sexual orientation discrimination as a top issue in its Strategic Enforcement Plan. In several decisions during the past five years, the agency has held that sexual orientation discrimination is sex discrimination. (Those decisions do not directly apply to private employers.) Also, the EEOC has pursued claims on behalf of LGBT employees under a “sex-stereotyping” theory that has been recognized by courts. Thus, the EEOC’s position is not new, and these lawsuits have been expected.

Recent lawsuits
You may be wondering how Title VII, a 1964 law that prohibits discrimination based on “race, color, religion, sex, or national origin,” could be read to include sexual orientation discrimination. The EEOC’s theory will likely be fairly straightforward based on what it has argued in previous cases that have extended Title VII’s protections to sexual orientation for federal employees. Title VII prohibits discrimination based on sex, which has been defined as extending beyond biological sex to characteristics like gender and pregnancy. Courts have clarified that employers may not rely on sex-based considerations or take gender into account when making employment decisions. The EEOC will likely take the position that sexual orientation is a sex-based consideration because a decision based on sexual orientation must consider the employee’s sex. In other words, an employer cannot discriminate against a gay man without considering the man’s gender. Therefore, sexual orientation is a sex-based consideration

In addition, the EEOC will likely argue that sexual orientation discrimination is illegal discrimination based on an employee’s association with a same-sex partner. “Associational discrimination” claims are best understood in the context of race discrimination claims (e.g., an employer terminates a white man because he is married to a black woman). The employee would have a difficult time establishing discrimination based on his race (white), but he could prove he was terminated for associating with a person in a protected category. Under this theory, an employee could prove he was discriminated against because of his association with a same-sex partner.

Lastly, the EEOC will argue that discrimination based on sexual orientation is “sex stereotyping,” which several courts have already agreed with. “Sex stereotyping” means that an employer may not discriminate against an employee because she fails to adhere to the expected stereotypes or norms for her sex. In other words, if a female employee is denied a promotion because she is too masculine (e.g., not wearing makeup or dresses or otherwise failing to live up to the employer’s expectations of how a woman should act or dress), she could have a claim for sex discrimination under a sex-stereotyping theory. Likewise, a gay man who is harassed because his supervisor considers him effeminate or believes men should marry women could have a sex-stereotyping claim.

Impact on employers
So what do the EEOC’s lawsuits mean for you? Almost half of the states have enacted laws prohibiting sexual orientation discrimination, and courts have already recognized that employees may assert sex-stereotyping claims based on sexual orientation discrimination. Thus, most employers know that sexual orientation discrimination is—at the very least—a gray area with plenty of risk. The lawsuits should make clear that sexual orientation discrimination is a priority for the EEOC, meaning it will give more attention to cases alleging discrimination based on sexual orientation, transgender status, and other sex-related characteristics. In other words, EEOC charges that allege those types of discrimination will likely be investigated quickly and aggressively. The EEOC will be more likely to request additional documents and initiate on-site interviews in those cases. Also, the agency will continue to look for opportunities to file similar lawsuits in other jurisdictions.

Employers should revise their handbooks and policies to make clear that sexual orientation discrimination is prohibited if they have not already done so. Training is particularly important with sexual orientation discrimination. Sexual orientation issues are often intertwined with religious concerns. Conflicts over deeply held beliefs can lead to disagreements between employees who would otherwise get along. Managers must be aware of what your company policies say and how the EEOC interprets the law. Similarly, employees must know that discrimination and harassment will not be tolerated and how to file a complaint if necessary.

Bottom line

Brent SilerAs with most legal matters, the EEOC’s lawsuits will take some time before there are any decisions, and the decisions will likely be appealed no matter who wins. Employers should stay alert as this area of law develops and consult legal counsel if issues arise.

Brent E. Siler is an attorney in Butler Snow LLP‘s labor and employment practice group in the firm’s Memphis office. He may be reached at brent.siler@butlersnow.com .