August 6, 2015

EEOC Rules Discrimination Based on Employee’s Sexual Orientation Violates Current Federal Law

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By Stoll Keenon Ogden PLLC

In a recent decision with implications for employers nationwide, the Equal Employment Opportunity Commission (EEOC) determined that workplace discrimination based on an employee’s sexual orientation is prohibited by current federal law. In light of the EEOC’s ruling, Stoll Keenon Ogden’s workplace attorneys have prepared this summary of the decision and its potential impact on your business.


Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employers from discriminating against any individual because of “race, color, religion, sex, or natural origin.” Since the late 1970s, each federal appellate courts that has considered the issue has consistently determined that Title VII does not protect against discrimination on the basis of sexual orientation.

In Pedreira v. KBHC, a recent case before the Sixth Circuit Court of Appeals, SKO successfully defended a nonprofit corporation in a suit brought by two women claiming they were discriminated against because of sexual orientation. The Sixth Circuit sided with SKO in determining that neither Title VII nor the Kentucky Civil Rights Act prohibits sexual-orientation discrimination. The U.S. Supreme Court refused to hear the case. Sixth Circuit decisions are binding on federal courts in Kentucky, Ohio, Michigan and Tennessee.

The EEOC itself issued a decision in 1976 holding that sexual-orientation discrimination was not prohibited by Title VII. Moreover, as recently as November 2013, the EEOC ruled that claims of discrimination on the basis of sexual orientation were “not within the EEOC’s purview.”    

Congressional inaction over the years also confirmed that Title VII does not extend to sexual-orientation discrimination. Beginning with the proposed Equality Act of 1974, Congress repeatedly rejected legislation that would have extended Title VII to cover sexual orientation.  Further, Congress did enact new legislation prohibiting discrimination on the basis of age, disability, veteran status, genetic information and pregnancy, among other employee protective laws such as OSHA, FMLA, ERISA and COBRA.

This background illustrates just how remarkable and unprecedented the EEOC’s recent decision is:  by extending the current version of Title VII to sexual-orientation discrimination, the decision flips 50 years of consistent application of Title VII.

The EEOC’s Decision

In Complainant v. Foxx, a temporary line manager at a federal air-traffic facility in Miami alleged he was denied a promotion to a permanent manager position because he is a homosexual. Although the EEOC did not reach the merits of the claim, it issued a decision confirming that workplace discrimination based on sexual orientation is a form of illegal “sex discrimination” under Title VII. The decision marks the first time the EEOC has formally declared sexual-orientation discrimination violates Title VII.

Reason for Concern

The case involved a federal government employee, so it will immediately impact federal-sector employment. However, Title VII also governs employment discrimination in the private sector. Therefore, the ruling provides an indication that the EEOC will investigate claims of sexual-orientation discrimination in the private sector. As a result, employees in any state can bring charges to the EEOC claiming sexual-orientation discrimination.

Title VII applies to employers with 15 or more employees, so the EEOC’s decision will affect a significant number of businesses. The same reasoning also could be applied to expand the Kentucky Civil Rights Act, which applies to employers with 8 or more employees, as well as  the Indiana Civil Rights Act, which applies to employers with 6 or more employees.   

What Activities Qualify as Sexual-Orientation Discrimination?

At its core, sexual-orientation discrimination involves treating an employee differently based on the employee’s sexual orientation. Examples of behavior that would be considered sexual-orientation discrimination are stated in the EEOC’s decision:

Employers should note that they can discriminate against straight employees on the basis of sexual orientation as well. For example, if a woman was suspended for placing a picture of her husband on her desk but a gay colleague was not suspended for placing a picture of his husband on his desk, the straight woman could bring a Title VII claim.

The Question of Religious Accommodation

The EEOC’s decision creates considerable uncertainty for employers. Among issues not addressed in the EEOC’s opinion is religious accommodation. Title VII requires employers to “reasonably accommodate” an employee’s or prospective employee’s “religious observance and practice, as well as belief.”  42 U.S.C. § 2000e(j).

Employers need to be on alert that the EEOC’s decision can create competing obligations with respect to employees’ sexual orientations and religious beliefs. For example, a company’s benefits coordinator may believe he or she cannot recognize same-sex marriage under his or her religion. In this hypothetical situation, the employer would be faced with an obligation to avoid discrimination against the same-sex employee while accommodating the religious beliefs of the benefits coordinator. Such conflicting responsibilities can make workplaces veritable minefields and fodder for lawsuits. Thus, it is urgent and essential that employers reassess current workplace policies and procedures in light of the EEOC’s decision.         

Next Steps for Employers

Both public- and private-sector employers should review their existing policies and procedures, and revise them to conform to the EEOC’s decision.  Among other policies, employers should review:

Additionally, employers should train managers and employees to recognize and prevent sexual-orientation discrimination. Above all, employers should take employee complaints of sexual-orientation discrimination seriously and investigate accordingly.  At the same time, employers must be aware that employees retain the right to reasonable religious accommodation.

If you are concerned about the impact the EEOC’s recent decision may have on your business, SKO’s workplace-law attorneys would be glad to speak to you.