Human Resources Group of West Michigan
Legal Update – July 2015
By Nathan D. Plantinga and Andrew A. Cascini
Miller Johnson
Teaching an Old Law New Tricks: The EEOC Opines that Sexual Orientation is a
Protected Characteristic Under Title VII
On July 15, 2015, the Equal Employment Opportunity Commission (the “EEOC”
or the “Commission”) released an administrative appeal ruling concluding that Title VII needed
no amendment or revision to prohibit discrimination on the basis of sexual orientation. Although
this ruling was only technically binding on employees of federal agencies, the EEOC’s extensive
effort to support its reasoning signals a firmly established position that the EEOC is expected to
look to extend to private employers. If so, the EEOC may experience resistance by some federal
courts - including the Sixth Circuit - that have held that sexual orientation discrimination is not
prohibited by Title VII. But the EEOC’s strong position on this issue should cause private
employers to be exceedingly wary of making employment decisions based on an employee’s
sexual orientation or gender identity.
Background. Employment discrimination laws prohibit employers from taking
adverse employment actions against employees on the basis of certain protected characteristics
or activities. Some characteristics are protected across the United States by federal statutes like
Title VII of the Civil Rights Act, the ADA, the ADEA, and others. Under these familiar statutes,
covered employers operating anywhere in the nation cannot discriminate against their employees
on the basis of race, sex, pregnancy, religion, age, disability, or national origin.
State laws may expand the scope of employment discrimination prohibitions by
adding additional characteristics to this list.
Michigan’s Elliot-Larsen Civil Rights Act
(“ELCRA”), for example, also prohibits Michigan employers from discriminating against
employees on the basis of marital status, height, and weight.
And while many states’
employment discrimination statutes identify “sexual orientation” as a protected characteristic,
slightly over half, including Michigan, do not.
In truth, however, the scope of protection under employment discrimination law
has never really been cut that clearly. As most HR professionals know, sex is a protected
characteristic under Title VII. The most obvious consequence of sex’s protected status is that an
employer cannot discriminate against a male employee for being a man or a female employee for
being a woman. But the Supreme Court has held in the decades following Title VII’s enactment
that this prohibition on discrimination “because of … sex” provides broader coverage than might
first meet the eye.
Supreme Court Precedent. Two cases are relevant. In Price Waterhouse v.
Hopkins, an accounting firm denied partnership to a female accountant because the firm felt she
did not behave “femininely” and instructed her to wear make-up, style her hair, and don jewelry.
The Court held that this conduct violated Title VII because employers “may not rel[y] upon sexbased considerations” or take gender into account when making employment decisions. The
employer violated the law, in other words, when it failed to promote the plaintiff based on her
failure to meet the employer’s stereotype of how a female “should” act, dress, or appear.
A later case, Oncale v. Sundowner Offshore Services, further complicated the
analysis.
In Oncale, a male oil-rig roustabout was subjected to “sex-related, humiliating
actions,” which included several physical assaults and even threats of rape from the other male
oil-rig workers. As a result of this treatment, the plaintiff brought a sexual harassment claim
against his former employer. The Fifth Circuit Court of Appeals dismissed his claim because
that court held that Title VII did not provide plaintiffs with a cause of action for same-sex hostile
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work environment harassment. But a unanimous Supreme Court reversed, holding that the
critical issue “is whether members of one sex are exposed to disadvantageous terms or conditions
of employment to which members of the other sex are not exposed.”
To be clear, the record in both Hopkins and Oncale didn’t include evidence that
either plaintiff was homosexual – neither Hopkins nor Oncale were sexual orientation
discrimination cases. But many legal scholars and lawyers noted that these cases could one day
“open the door” and allow a plaintiff to argue that discrimination because of sexual orientation
qualifies as discrimination because of sex.
The EEOC’s Ruling. On July 15, 2015, the EEOC issued an appeal decision
kicking that door down entirely. The EEOC’s decision stemmed from an administrative appeal
filed by an anonymous employee of the Federal Aviation Administration (“FAA”).
The
Claimant in the FAA case was a temporary Front Line Manager who applied for a permanent
position. Despite applying, the Claimant was never tapped for this permanent role and instead
alleged that he was not selected because he was gay. The Claimant supported his conclusion by
identifying numerous instances where his supervisor had made derogatory comments about his
sexual orientation, including one quip that his co-workers “don’t need to hear about that gay
stuff.” After the Claimant’s EEO complaint before the FAA’s internal review department was
denied, he filed an administrative appeal directly with the EEOC.
The EEOC reversed the FAA’s determination and held that the Agency violated
Title VII when it discriminated against the Claimant by denying him a promotion because of his
sexual orientation. In its decision, the EEOC explicitly acknowledged that sexual orientation is
not itself a prohibited basis for employment decisions under Title VII. Nevertheless, the agency
concluded, sexual orientation must be a protected characteristic under the law because of the way
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the Supreme Court (through cases like Hopkins and Oncale) has interpreted Title VII.
Accordingly, the EEOC “conclude[d] 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.”
The EEOC reached this conclusion for three reasons:

First, the EEOC concluded that “[s]exual orientation discrimination is sex
discrimination because it necessarily entails treating an employee less favorably
because of the employee’s sex.”
In furtherance of this point, the EEOC
considered the hypothetical example of a female employee who was fired by her
employer for keeping a photograph of her wife at her workstation. The employer
has violated Title VII, the EEOC argued, if that employer would not have
terminated a male employee for displaying pictures of a female that he was
married to. Accordingly, the adverse action would be “based on… sex.”

Second, the EEOC held that “[s]exual orientation discrimination is also sex
discrimination because it is associational discrimination on the basis of sex.” In
other words, “an employee alleging discrimination on the basis of sexual
orientation is alleging that his or her employer took his or her sex into account by
treating him differently for associating with a person of the same sex.”

Finally, the EEOC also found that sexual orientation discrimination was sexbased
discrimination
because
sexual
orientation
discrimination based on gender stereotypes.”
“necessarily
involves
If an employee is terminated
because he or she “acts like a homosexual,” that employee has effectively been
terminated because he or she is insufficiently masculine or feminine based on
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stereotypical gender-based criteria. Thus, the EEOC argued, this is no different
from the discrimination faced by the plaintiff in Hopkins that was held to be
unlawful.
In holding that sexual orientation discrimination violates Title VII, the
Commission explicitly quoted the unanimous Supreme Court’s holding in Oncale: “[S]tatutory
prohibitions often go beyond the principal evil [they were passed to combat] to cover reasonably
comparable evils, and it is ultimately the provisions of our laws rather than the principal
concerns of our legislators by which we are governed.”
Practical Impact? The EEOC’s decision applies only to employees of federal
agencies and is not binding on private employers. In addition, the ultimate responsibility to
conclusively interpret Title VII is the duty of the federal courts, and the courts are neither legally
entitled to follow the EEOC’s lead nor obligated to give it persuasive deference.
But the EEOC’s ruling signals that the EEOC may be positioning itself to accept
and investigate charges filed against private employers on the basis of sexual orientation
discrimination. Accordingly, employers should be prepared to present their best evidence of
legitimate, non-discriminatory reasons for discharge if a terminated employee alleges that he or
she was terminated on the basis of his or her sexual orientation.
In a more general sense, however, it may be time for employers in every state to
recognize the direction that employment discrimination law seems destined to follow. More and
more states have amended their own employment discrimination statutes to prohibit sexual
orientation discrimination. Moreover, LGBT rights are currently a “hot” constitutional issue in
the wake of the Supreme Court’s same-sex marriage decision in Obergefell v. Hodges. All of
this legal momentum could mean that sexual orientation may soon become a protected
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characteristic under federal employment law by one means or another. We expect that day to
come, and private employers should be ready for it.
If you have any questions regarding this article or other matters, please contact the
authors for more information:
Nathan D. Plantinga (616) 831-1773; plantingan@millerjohnson.com
Andrew A. Cascini (616) 831-1705; cascinia@millerjohnson.com
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