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EEOC finds current law prohibits workplace discrimination based on sexual orientation

by John Sheller and Steven Clark

Workplace discrimination based on an employee’s sexual orientation is prohibited by Title VII of the Civil Rights Act of 1964, according to a recent Equal Employment Opportunity Commission (EEOC) decision.

By extending current federal law to include sexual-orientation discrimination, after 50 years of consistently excluding it, employers nationwide are impacted.

Discrimination Prohibition Flashback
Title VII prohibits employers from discriminating because of “race, color, religion, sex, or natural origin.” Since the 1970s, federal appellate courts have consistently determined that Title VII does not protect against sexual-orientation discrimination.

In the past, the EEOC agreed that Title VII did not prohibit sexual-orientation discrimination. As recently as November 2013, the EEOC ruled that claims of sexual-orientation discrimination were “not within the EEOC’s purview.”

For decades, Congressional inaction confirmed that Title VII does not extend to sexual-orientation discrimination. Beginning with the proposed Equality Act of 1974, Congress repeatedly rejected legislation extending Title VII to include sexual orientation, while enacting laws to protect employees by prohibiting discrimination based on age, disability, veteran status, genetic information and pregnancy.

The Decision’s Impact
The EEOC reached its decision that sexual-orientation discrimination violates Title VII in Complainant v. Foxx, a case where a temporary line manager at a federal air-traffic facility alleged he was denied a promotion because he is homosexual. Without addressing the claim’s merits, the EEOC ruled that workplace discrimination based on sexual orientation is a form of illegal “sex discrimination” under Title VII.

Because the case involves a U.S. government employee, federal-sector employment is immediately impacted. Since Title VII also governs the private sector, the EEOC is likely to investigate sexual-orientation discrimination claims from employees against private businesses.

Religious Accommodation
Title VII also requires employers to “reasonably accommodate” an employee’s “religious observance and practice, as well as belief.”

While the EEOC’s recent decision did not address religious accommodation in the workplace, it created competing obligations regarding employees’ sexual orientations and religious beliefs. For example, if a company’s benefits coordinator’s religious beliefs prevent him or her from recognizing same-sex marriage, the employer may be obligated to avoid discrimination against the same-sex employee while accommodating the benefits coordinator’s religious beliefs.

Guard Against Workplace Sexual-Orientation Discrimination
Employers must assure that all employees are treated equally and recognize discrimination when it occurs. Examples of sexual-orientation discrimination include:

  • Commenting negatively about a person’s homosexuality
  • Extending spousal benefits to a male employee’s wife while denying benefits to a same-sex spouse
  • Suspending an employee for displaying photos of a same-sex spouse but not suspending a male employee for displaying photos of his wife

Sexual-orientation discrimination against straight employees also can occur. If a woman is suspended for placing a picture of her husband on her desk but a gay colleague displaying a photo of his husband is not suspended, the straight woman could file a Title VII claim.

Training managers and employees to recognize and prevent sexual-orientation discrimination is critical to preventing occurrences. Employers should take employee complaints of sexual-orientation discrimination and harassment seriously and investigate accordingly. Also, employers must be aware that employees retain the right to reasonable religious accommodation.

Finally, employers should review existing policies and procedures to assure conformance to the EEOC’s decision, including:

  • Anti-discrimination and harassment policies
  • Workplace conduct standards
  • Healthcare policies