The Equal Employment Opportunity Commission filed a “friend of the court” brief in a sexual orientation discrimination appeal, arguing that sexual orientation discrimination is “sex discrimination” prohibited by Title VII. (Thanks to EEOC General Counsel David Lopez for alerting me.)

I am a skeptic on this subject. Title VII was enacted in 1964, and legend has it that sex discrimination (as in, “discrimination against women”) was not even supposed to be included as a protected category. Some racial segregationists, who didn’t like the idea of outlawing race discrimination, reportedly threw sex into the bill, hoping to defeat it. (Some say that this “sabotage” story is an urban legend.)

Whether it really happened that way or not, the fact that the story exists shows that the United States was a very different place in 1964. The idea of enacting federal legislation to protect people from discrimination based on sexual orientation was as far-fetched as the idea that someday you’d be able to carry around a little device the size of your hand and use it to buy stuff, read the news, take pictures, make phone calls, send messages, and play Candy Crush.

Also, for years, people have been trying (unsuccessfully) to get the federal Employment Non-Discrimination Act passed, which would prohibit discrimination based on sexual orientation. Why go to all that trouble, if Title VII already had it covered?

So, my inclination is to ask, “Why on earth would the EEOC say that Title VII prohibits sexual orientation discrimination?” But having read their brief, I think the EEOC makes some pretty solid legal arguments.

Burrows v. College of Central Florida

First, a bit about the case. Plaintiff Barbara Burrows sued her former employer, the College of Central Florida, claiming she was discriminated against because of her sexual orientation and for failing to conform to gender stereotypes. A federal district court granted summary judgment to the College, and Ms. Burrows appealed to the U.S. Court of Appeals for the Eleventh Circuit.

The 11th Circuit hasn’t ruled yet. Meanwhile, on Wednesday, the EEOC filed its amicus brief in support of Ms. Burrows.

Here’s why the EEOC says sexual orientation discrimination is, or should be, protected by Title VII:

1) Answering my first objection, the EEOC says that the courts can, and frequently do, logically extend the scope of a law beyond its original intent. Good for the EEOC for addressing this concern right off the bat. And the agency gave a good example – harassment. Title VII has never said anything about unlawful harassment. The statute prohibits only “discrimination” based on race, sex, color, national origin, and religion. However, courts began deciding that harassment based on these characteristics was a form of “discrimination,” and the U.S. Supreme Court officially recognized hostile work environment harassment in 1986. In other words, the courts expanded the Title VII definition of “discrimination.” The logical “expansion” today, the EEOC argues, would be to extend Title VII to include sexual orientation discrimination.

I’m still not entirely convinced, but I think the EEOC did a good job with this argument.

2)  The courts have already said that gender stereotyping is a form of sex discrimination prohibited by Title VII. “Gender stereotyping” occurs when, for example, an employer discriminates against a female employee for being too “masculine” in her looks or demeanor. Or discriminates against a guy for being “effeminate.”  Discrimination against transgender persons is generally considered to be unlawful gender stereotyping under Title VII.

(In the more traditional context, gender stereotyping could also include — as examples — refusing a promotion to a qualified woman based on the stereotypical belief that she’ll be limited by her family obligations, or thinking a man’s career is all washed up because he took paternity leave for his new baby.)

On the other hand, most courts say that discrimination based on sexual orientation alone is not protected. Picture a lesbian in makeup and frilly clothes, or a macho looking gay man. They fit their gender stereotypes, right? Therefore, many courts say, they have no federal protection unless Congress enacts the ENDA or something like it.

But, the EEOC says, discrimination based on sexual orientation really is a kind of gender stereotyping. Instead of discriminating because the person appears inappropriately “masculine” or “feminine,” you’re discriminating because they don’t fit your stereotypes as to who should be pairing up with whom. It’s all stereotyping based on sex — just different varieties of the same thing.

I lean toward the EEOC on this point. In my opinion, our courts have engaged in some mighty fine line-drawing over the years by distinguishing people who don’t look appropriate based on traditional views of men and women (protected) from people who look appropriate but don’t conduct themselves according to same (unprotected). The “gender stereotyping” door has been open for a long time, and just about everyone is protected except “masculine” gay men and “feminine” lesbians. That probably doesn’t make sense.

3) Discrimination based on sexual orientation is a form of “associational” discrimination prohibited by Title VII. We all know it would be illegal to discriminate against a white guy because he’s married to an African-American woman, right? That’s discrimination based on race, right? The EEOC says discriminating based on sexual orientation is the same type of thing – except the employer would be discriminating based on sex: that is, the employee’s choice of a partner of the “wrong” sex.

In our post-Obergefell world, this argument made legal sense to me, too.

4) Discrimination based on sexual orientation is discrimination based on sex. The EEOC’s argument here struck me as conclusory (“It just is, ok?”) and not persuasive.

“What do you think, Robin?” Although the EEOC made some very strong arguments, I’m not quite there. It was the same problem I had with pregnancy accommodation. I’m not opposed to laws banning discrimination based on sexual orientation (or requiring pregnancy accommodation), but I think it’s better for Congress to legislate rather than for courts and administrative agencies to take ever-changing, ever-more-expansive interpretations. The legislative process allows for more stability and predictability, and an opportunity for employers (as well as the LGBT community) to influence that process. In addition, legislative changes are not retroactive, but new court interpretations usually have retroactive effect.

On the other hand, this one might not be that big a deal, since most employers are way ahead on the issue of sexual orientation discrimination. I can’t remember the last time I saw an employer EEO-harassment policy that didn’t include sexual orientation.

Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.


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