In a landmark decision, Complainant v. Fox, Sec., Department of Transportation, Appeal No. 0120133080 (July 15, 2015), the EEOC held that a federal employee who brings a complaint of discrimination on account of sexual orientation states a claim under Title VII for discrimination on account of sex. This decision, issued by the EEOC’s Office of Federal Operations, was issued over the signature of the EEOC’s Executive Secretariat, which means that this decision was actually voted on by the commissioners, not just issued by the OFO.

In this case, the complainant filed a complaint of sex discrimination alleging that he was not selected for promotion because he was gay. The agency declined to process his complaint through the EEOC’s provisions of 29 CFR 1614, stating that sexual orientation was not covered within the definition of sex discrimination. Instead, the agency agreed to process the complaint only through its internal procedures. The complainant appealed the dismissal of his complaint to the EEOC’s Office of Federal Operations. The commission reversed the dismissal of the complaint.

The Commission found that the issue is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions, because it is not. Rather, the question was whether coverage of sexual orientation is the same as any other Title VII case involving allegations of sex discrimination – whether the agency has relied on sex-based considerations were taken gender into account when taking the challenged employment action. The Commission concluded that the claim of sexual orientation discrimination alleges that the agency relied on sex-based considerations and took Complainant’s sex into account in his decision not to promote him. The Commission concluded 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.”

According to the Commission, discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. It follows that sexual orientation is inseparable from, and inescapably linked to, sex and therefore allegations of sexual orientation discrimination involve sex-based considerations. Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.

The Commission also found that sexual orientation discrimination is sex discrimination because it is associational discrimination on the basis of sex–that is, treating an employee differently for associating with a person of the same sex. The Commission analogized to Title VII’s prohibition on race discrimination which prohibits discrimination based on an employee’s association with a person of another race, such as an interracial marriage or friendship. The Commission, consistent with various court cases, also reiterated that sexual orientation discrimination is sex discrimination because it necessarily involves discrimination based on gender stereotypes.

Quoting from the unanimous Supreme Decision in Oncale v. Sundowner Offshore Services Inc. the Commission reminded that while Congress may not have envisioned the application of Title VII to sexual orientation claims, “statutory prohibitions often go beyond the principal evil they were passed to combat to cover reasonably comparable evils.”

The Commission wrote: “we therefore conclude that Complainant’s allegations of discrimination on the basis of sexual orientation state a claim of discrimination on the basis of sex. We further conclude that allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex.” The Commission specifically directed agencies to “treat claims of sexual orientation discrimination as complaints of sex discrimination under Title VII and process such complaints through the ordinary Section 1614 process.”

* This information is provided by the attorneys at Passman & Kaplan, P.C.