Friday, July 17, 2015

EEOC Decides that Sexual Orientation Discrimination = Sex Discrimination

EEOCYesterday, the EEOC ruled that discrimination based on an applicant's or employee's sexual orientation is always a violation of Title VII.  The EEOC had been making noises in that direction, but this makes the opinion official.  

In its decision, the EEOC went beyond previous caselaw, which recognized that discrimination based on sexual orientation may fit under a sex stereotyping theory.  But this theory required the plaintiff to establish that the adverse decision was motivated by the plaintiff's not fitting the employer's stereotype (e.g., an effeminate male).  Yesterday's decision went further by holding that sexual orientation discrimination always equates to sex discrimination under Title VII.  The EEOC's reasoning is that discrimination based on someone's sexual orientation necessarily discriminates against that person's sex.  In other words, an employer that discriminates against a man who is attracted to men, but not to women who are attracted to men is engaged in sex discrimination.  The money quote from the decision (you can see this Buzzfeed article for more quotes):  

[S]exual orientation is inseparable from and inescapably linked to sex and, therefore, [] allegations of sexual orientaticm discrimination involve sex-biased considerations. . . . Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee's sex. 

Plaintiffs pushed this argument years ago with almost no success (although, as the EEOC notes, courts have gone along with the same argument for other types of discrimination, such as an employee in an interracial marriage), so it'll be interesting to see if courts are more hospitable to this argument.   One practical hurdle is preexisting precedent; however, an agency pronouncement should be entitled to deference, which could help overcome that problem.  And there's also the reality that the country as a whole, not to mention the Supreme Court, has obviously become far more sensitive to sexual orientation discrimination over the past several years.  But it will be interesting to see how this plays out.

For more reading, see Victoria Schwartz's (Pepperdine) article from 2012, where she argued for just this theory.  Expect some court citations soon, Victoria  . . . .

Hat Tip:  Patrick Kavanagh and others.

-JH

 

 

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Comments

One of CJ Robert’s questions during oral argument in the Obergefell case gave some people hope that he would vote with the majority. He asked if the case could simply be decided on the basis of associational sex discrimination, a theory that had been relied upon by some judges in marriage and non-marriage cases:

“CHIEF JUSTICE ROBERTS: Counsel, I'm -- I'm not sure it's necessary to get into sexual orientation to resolve the case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?” Question No. 1 Transcript, at 61-62, at http://www.supremecourt.gov/oral_arguments/argument_transcripts/14-556q1_2dq3.pdf.

In Loving v. Virginia, the Court used the same analogy to hid race discrimination.

The EEOC's new Foxx decision is a natural progression from its Macy (gender identity) decision and the many cases finding sex or race discrimination in the associational cases. It is a reflection of what Zachary Kramer noted about sexual orientation (SO) in Title VII cases – SO was “hiding in plain view” and thus was not discussed when the litigation involved heterosexual interactions. The remainder of this post is a quote from Zachary A. Kramer, Heterosexuality and Title VII, 103 Nw. U. L. Rev. 205, 208–09 (2009), available at http://web.archive.org/web/20141028101731/http://www.law.northwestern.edu/lawreview/v103/n1/205/LR103n1Kramer.pdf (footnotes omitted):


[I]n our culture, heterosexuals are typically thought of as not having a sexual orientation. Instead, heterosexuality is merely the normative baseline against which all other sexual orientations are tested. As such, heterosexuality tends to be missing altogether from discussions about sex and sexuality. This is especially true of legal discourse about sex and sexuality—courts rarely even acknowledge the existence of heterosexuality, let alone consider its legal implications.

. . . .

[T]here is a double standard at work in employment discrimination cases. For lesbian and gay employees, sexual orientation is a burden because courts are primed to reject otherwise actionable discrimination claims on the theory that such claims are an attempt to bootstrap protection for sexual orientation into Title VII. However, rather than being burdened by their sexual orientation in employment discrimination cases, heterosexual employees are not affected by theirs. Because heterosexuality is invisible in our culture, courts simply fail to recognize when an employee’s discrimination claim implicates her heterosexuality. As a result, no court will ever conclude that a heterosexual employee is raising a sex discrimination claim as a means to bootstrap protection for sexual orientation into Title VII. Put simply, heterosexuals and homosexuals are not similarly situated under Title VII.

. . . .

[T]he invisibility of heterosexuality [is due] to what I call the “paradox of privilege.” The thrust of the paradox of privilege is that heterosexuality is at once everywhere and nowhere—everywhere because it is normative, yet nowhere because its normativity renders it invisible. One consequence of the paradox of privilege is that “sexual orientation” has become synonymous in our culture with “homosexuality,” removing heterosexuality from discussion.

Posted by: Christine Michelle Duffy | Jul 18, 2015 4:23:28 AM

Its unfortunate that this took so long. Discrimination based on sexual preference will still be an issue for years to come. www.queensemploymentattorney.com is a lawyer blog site that specializes in workplace issues providing helpful info on discrimination issues.

Posted by: Lola W | Jul 23, 2015 1:32:36 PM

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