Recent cases before the Equal Employment Opportunity Commission enforce anti-discrimination rights for LGBTQ federal employees. For many years, federal employees were not protected from discrimination based on their sexual orientation. Employees who were gay, lesbian, bisexual, or transgender faced discrimination in Federal employment. These employees had few protections under the law because they could not rely on state laws forbidding discrimination based on sexual orientation.
More recently, however, federal agencies have been required to recognize that Title VII’s prohibition on”sex” discrimination includes a prohibition on discrimination based on an employee’s sexual orientation. In 2015, the EEOC decided in Baldwin v. Foxx, Appeal No. 0120133080 (EEOC July 15, 2015), that title VII did in fact prohibit sexual orientation discrimination. The EEOC is responsible for ensuring that federal agencies comply with federal anti-discrimination laws.
The EEOC relies on ‘sex stereotyping’ to recognize sexual orientation discrimination
Underlying the Baldwin decision is the 1989 supreme Court decision in Price Waterhouse v. Coopers. In that case, a six-justice majority concluded that title VII’s prohibition on sex discrimination included both the physical sex of the person and that person’s gender. In that case, the employee had been told that she would have to act more feminine around the office in order to be successful in her job. This kind of sex stereotyping was held to be unlawful under title VII.
Many of the Courts of Appeals that are underneath the Supreme Court have interpreted this as prohibiting discrimination based on characteristics of an individual’s gender. Moreover, in a 1998 case, the Supreme Court held that male-on-male discrimination could still be considered sex-based discrimination. More recently, the Seventh Circuit has held that “sex” discrimination also includes discrimination based on sexual orientation, in Hively v. Ivey Tech Community College, 853 F. 3d 339 (7th Cir. 2017).
The EEOC points to three theories to support sexual orientation discrimination coverage under Title VII
The EEOC relied on three different theories of discrimination to support its reasoning why sex discrimination included discrimination based on sexual orientation.
- Comparative discrimination. Because any action taken based on an employee’s sexual orientation would necessarily refer to that employee’s sex (male or female), the EEOC concluded that sexual orientation was forbidden under title VII. The EEOC justified its decision by pointing out that if a (straight) male and (lesbian) female employees were each to post a picture of his and her wife, but only the female employee was punished, that would constitute a different treatment based solely on the employee’s sex. This kind of comparative analysis is frequently used in determining whether an employee is being harassed based on his or her sex.
- Associational Discrimination. The EEOC also based its analysis of title VII on the prohibition against what is called “associational discrimination.” It is unlawful under title VII to discriminate against a person because that person associates with members of a different race, national origin, or the like. The same logic applies, according to the EEOC, to people who romantically associate themselves with members of their own sex.
- Stereotype-based Discrimination. If an employer expects an employee to act in a way that conforms with a stereotype of that person’s gender, that is also discrimination. For example, employees who did not act ‘manly’ enough or ‘feminine’ enough to fit the employer’s expectations. Discriminating against a gay, lesbian, or transgender person almost always involves assumptions about what is masculine or feminine behavior. The EEOC concluded that taking action based on and employees failure to conform to this gender stereotypes constituted unlawful sex-based discrimination under Title VII.
Many employers may not be aware that sexual orientation discrimination is considered to be unlawful under Title VII. Federal employers are prohibited from taking employment actions based on the employees sexual orientation.
If you believe that you have been the victim of sexual orientation discrimination, whether at a federal agency or in any other kind of employment, you should contact your EEO counselor as soon as possible. And attorney can be helpful in analyzing the facts of your case and helping you to obtain the protections of the law that are your right.