After spending the 1990s and the 2000s largely denying that sexual orientation discrimination is discrimination based on sex, the Equal Employment Opportunity Commission last month had a eureka moment and ruled to the contrary. Now federal managers and supervisors will have to confront sexual discrimination head on rather than rely on loopholes in an interpretation of Title VII of the Civil Rights Act that allowed such discriminatory conduct to persist.
In Baldwin v Department of Transportation (2015), the EEOC found that “[s]exual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.” Compare this statement to an earlier one the Commission made in Hitchcock v. Department of Homeland Security (2007): “The Commission has repeatedly held that discrimination based on sexual orientation does not constitute discrimination based on sex actionable under Title VII.” The ramifications of this new interpretation of sexual orientation discrimination in relation to Title VII’s prohibition against discrimination based on sex will be sweeping – and may be costly for agencies.
The Baldwin decision has closed the loophole upon which federal agencies relied to dodge liability when management officials or co-workers discriminated against employees solely because they liked members of the same sex. Under the interpretation of Title VII that the EEOC had adopted through most of the Obama administration, agencies could only be held liable for discriminating against gay or lesbian employees when management officials or co-workers treated employees adversely because they were not acting masculine or feminine enough; that is, if they were not conforming to “gender norms.”
Even more, in Culp v. Department of Homeland Security (2013), the EEOC found the allegation made by the complainant, a lesbian, that her supervisor had warned her about creating an “improper perception” by going out to lunch with a lesbian co-worker was sufficient to state a claim of sex discrimination based on a failure “to match gender-conforming behavior.”
However, if no one at the agency tripped over this gender stereotyping issue, there was little victims of discrimination could do if they were removed or demoted because of their sexual orientation. Executive Orders 13087 and 13152 amended Executive Order 11478 to disallow federal agencies from discriminating against employees because of their sexual orientation or gender identity. While victims of such discrimination could file sexual orientation discrimination complaints with agencies, such filings traditionally fell outside of the Equal Employment Opportunity process because the discrimination was not prohibited by federal statute such as Title VII. However, in Baldwin, the EEOC has now said agencies “should make applicants and employees aware that claims of sexual orientation discrimination will ordinarily be processed under Section 1614[, which establishes the federal agency EEO process,] as claims of sex discrimination unless the employee requests that the alternative complaint process be used.”
The male complainant in Baldwin, who alleged he was not promoted because he is gay, would have had to pursue an alternative complaint process rather than the “more appropriate” EEO process had the Commission not, as the saying goes, “seen the light.” His supervisor had told the complainant, when he started talking about a trip he had taken with his male partner, “[w]e don’t need to hear about that gay stuff.” The supervisor also said a conversation about activities with a same-sex partner made the complainant “a distraction in the radar room.”
The supervisor in Baldwin did not attack the complainant’s gender in these comments, but in them there is a clear animosity toward his relationship with a same-sex partner. And just as Title VII prohibits agencies from racially discriminating against employees in interracial marriages, the Commission said, the statute “similarly prohibits employers from treating an employee or applicant differently than other employees or applicants based on the fact that such individuals are in a same-sex marriage or because the employee has a personal association with someone of a particular sex.”
It remains to be seen whether appellate courts will follow the EEOC’s interpretation of Title VII and whether legislation, such as the Employment Non-Discrimination Act, is needed to explicitly add the term “sexual orientation” to the statutory list of protected classes. It may take years for that to happen. Whether you are a supervisor accused of sexually discriminating against an employee or an employee who is the victim of such misconduct, you are now in uncharted territory and should have an experienced federal employment law attorney help you navigate the legal terrain.
Cheri Cannon is a partner at Tully Rinckey PLLC and the former chief counsel to the chairman of the Merit Systems Protection Board. She concentrates her practice in federal sector labor and employment law and can be reached at info@fedattorney.com.
Agencies lose sexual orientation discrimination loophole
