by Courtney Bru
The last few years have seen a dramatic expansion of rights on the basis of sexual orientation and gender identity. In 2013, the U.S. Supreme Court found unconstitutional the heterosexual definitions of “marriage” and “spouse” in the federal Defense of Marriage Act (DOMA). And earlier this year, the Court found same-sex marriage is a fundamental right protected by the federal constitution. 
Another potentially more significant development has received less attention: the Equal Employment Opportunity Commission (EEOC) has recently taken the position that Title VII of the Civil Rights Act of 1964 affords protection from discrimination on the basis of sexual orientation.
Current state of Title VII
Title VII was first enacted in 1964. In its current state, the law prohibits discrimination on the basis of “race, color, religion, sex, or national origin.” Many courts have found that sexual orientation is not a protected class or characteristic under Title VII. In reaching that conclusion, the courts focused on the express language of the statute and the absence of congressional intent to extend its protections to sexual orientation.
In fact, over the last 20 years, there have been multiple attempts to enact some form of the Employment Non-Discrimination Act (ENDA), which would amend Title VII to expressly ban discrimination on the basis of sexual orientation and gender identity. The legislation has repeatedly failed to pass both houses of Congress. As a result, nearly half of U.S. states have enacted their own laws prohibiting discrimination on the basis of sexual orientation. Many counties and municipalities have followed suit as well.
Supreme Court cases
The U.S. Supreme Court has previously determined that Title VII’s prohibition of discrimination on the basis of “sex” prohibits employers from relying on “sex-based considerations” or taking “gender into account” when making employment decisions. In Price Waterhouse v. Hopkins, the Court found that employers act on the basis of “sex” when decisions are based on assumptions or stereotypes that correlate to sex. For example, in “the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.”
In other words, gender discrimination includes discrimination based on “assumptions, expectations, stereotypes or norms” regarding gender. And more than 15 years ago, in Oncale v. Sundowner Offshore Servs., the Supreme Court declared that Title VII’s protection against discrimination on the basis of “sex” prohibits same-sex sexual harassment.
EEOC decisions
In 2012, David Baldwin, a federal employee, filed an administrative charge of discrimination with the EEOC alleging he was discriminated against because of his sex and sexual orientation. Specifically, he alleged he was denied a promotion because he is gay.
In its decision, the EEOC relied on the existing prohibition on discrimination based on sex-based stereotypes or assumptions, concluding it “applies equally in claims brought by lesbian, gay and bisexual individuals under Title VII.” According to the EEOC, “sexual orientation is inseparable from and inescapably linked to sex.”
Without resolving the merits of the claim, the EEOC ultimately found 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.” Baldwin v. Foxx, FAA-2012-24738 (EEOC, June 15, 2015).
This isn’t the first time the EEOC has adopted a position expanding the traditionally accepted scope of Title VII. In 2012, it similarly found in Macy v. Holder that Title VII prohibits discrimination on the basis of transgender status. In 2014, it filed two lawsuits against employers alleging discrimination against individuals transitioning from male to female. One of the lawsuits settled for $150,000, and a court has refused to dismiss the other. Earlier this summer, the agency filed a third such lawsuit, which also remains ongoing. At least two federal courts have found the EEOC’s decision in Macy v. Holder relevant in the context of allegations of discrimination on the basis of transgender status.
Bottom line
The EEOC’s decision in Baldwin v. Foxx wasn’t unanimous, but it will likely carry some persuasive value and may have an impact on courts, much like the decision in Macy v. Holder. This is particularly true in light of the fact that in recent years, numerous courts have determined that Title VII protections extend to transgender status, sexual orientation, and/or gender identity.
Regardless, it serves as yet another demonstration of the EEOC’s willingness to proactively advocate for wide-scale expansions in the law.
Courtney Bru is an attorney with McAfee & Taft in Tulsa, Oklahoma. She may be contacted at courtney.bru@mcafeetaft.com.