Since Congress enacted Title VII in 1964, federal courts have almost uniformly declined to recognize a statutory claim based on sexual orientation discrimination. The prevailing opinion has been that sex discrimination is different than sexual orientation discrimination and—while Title VII is clearly meant to prohibit the former—there is no indication that Congress also meant to prohibit the latter.
The EEOC is now pushing back on that notion. In March, the agency announced that it had filed two lawsuits challenging sexual orientation discrimination in the private employment context. One suit, filed in the U.S. District Court for the Western District of Pennsylvania, alleges that a gay employee was subjected to workplace harassment because of his sexual orientation. The second suit, filed in the U.S. District Court for the District of Maryland, alleges that a lesbian employee was harassed by her supervisor on the basis of her sexual orientation and then fired in retaliation for complaining about the supervisor’s conduct. As these lawsuits indicate, the EEOC now takes the position that sexual orientation discrimination “is, by its very nature, discrimination because of sex.”
But it remains far from clear that the courts will side with the EEOC’s interpretation of the statute. For example, only days after the EEOC issued its press release, the First Circuit affirmed the dismissal of a sexual orientation discrimination claim in Christiansen v. Omnicom Group Inc. et al. In its opinion and order issued on March 9, 2016, the court made clear that this is an issue that either Congress or the Supreme Court needs to promptly address in light of recent decisions on same-sex marriage and the EEOC’s interpretation of Title VII to include sexual orientation discrimination. The court addressed discrimination claims based on both sexual orientation and nonconformity with sex stereotypes, rejecting both theories.
On the issue of sexual orientation discrimination claims, the court relied on Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), to hold that Title VII does not provide a cause of action for sexual orientation discrimination in the workplace. The court reiterated that sexual orientation discrimination is “reprehensible,” but it explained that Congress has had multiple opportunities to extend Title VII to cover such discrimination, yet it has declined to do so.
On the issue of discrimination claims based on nonconformity with sex stereotypes, the court recognized that such a claim could be cognizable under Title VII. However, Simonton prohibits a plaintiff from using sex stereotypes to “bootstrap protection for sexual orientation into Title VII.”
While these mixed messages may leave employers scratching their heads, at least this much is clear: regardless of what the courts say, the EEOC now takes the position that Title VII forbids sexual orientation discrimination. That means an employer that does not take seriously the obligation to prevent such discrimination could be faced with a costly EEOC investigation, even if not (yet) a successful lawsuit.