EEOC Rules– Sexual Orientation Discrimination Equals Sex Discrimination under Title VII

On July 15, 2015, the EEOC clarified that, at least for claims made against the federal government, all complaints of discrimination based on sexual orientation constitute sex discrimination claims under Title VII. Baldwin v. Foxx, Secretary, Dept. of Transportation, EEOC Appeal No. 0120133080. The case involved David Baldwin, an air traffic controller who filed an EEO complaint against the Federal Aviation Administration, claiming that he was subjected to discrimination on the basis of his sex and retaliation for his prior protected activity. Baldwin claimed that he was not chosen for a permanent position as a front line manager because he is gay, pointing to numerous negative comments made by his supervisor about his sexual orientation (like “we don’t need to hear about that gay stuff” in response to Baldwin talking about a trip with his partner and being told that he was a distraction when he talked about his male partner).

The EEOC concluded 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.” Id., p. 6. The EEOC explained that sexual orientation discrimination is premised on sex-based preferences, expectations, stereotypes or norms—and sexual orientation cannot be defined or understood without reference to sex. Sexual orientation discrimination is sex discrimination because “it necessarily entails treating an employee less favorably because the employee’s sex.” Id., p. 7. Additionally, sexual orientation is sex discrimination because it is associational discrimination on the basis of sex (so alleging that employer treating differently because associating with person of same sex) and inherently involves discrimination based on stereotypes. Id., pp. 8-9.