Following up on my earlier posts here and here regarding the Equal Employment Opportunity Commission (“EEOC”) focus on sex discrimination protection for transgender employees, now the EEOC has turned its attention to discrimination based on sexual orientation.
Recently, the EEOC addressed a charge brought by unnamed employee in the air traffic control tower at Miami International Airport who claimed he was denied a promotion because he’s gay. The airport worker who filed the claim said a supervisor had made disparaging comments about him for talking about his partner, repeatedly calling him “a distraction in the radar room.” Allegedly, the supervisor said, “We don’t need to hear about all that gay stuff.” The worker claimed that his sexual orientation factored into his supervisor’s decision to promote two of his colleagues but not him.
In a 17-page ruling, issued in July, the EEOC said such discrimination is unlawful under Title VII, which prohibits sex bias. In its ruling, the EEOC concluded that sexual orientation is a sex-based consideration. Specifically, the EEOC stated: “Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”
What is the takeaway for employers?
1. Get your policies and procedures updated. While Title VII may not expressly provide protection for discrimination based on gender identity or sexual orientation, employers must recognize that the EEOC interprets existing law as providing that protection. Additionally, your company may be subject to local or state law that does provide specific coverage for these types of claims.
2. Recognize that the EEOC is focusing on discrimination and harassment that involves gender identity and sexual orientation. Therefore, your nondiscrimination and harassment policies and procedures need to include, both in writing and in practice, a bar against discrimination/harassment based on gender identity and sexual orientation.
3. It may be time for training. When was the last time you held discrimination/harassment training? If you can’t remember then it may be time to do a training session with an emphasis on gender identity and sexual orientation.
Dori K. Stibolt is an attorney with the law firm of Fox Rothschild LLP. Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims. You can contact Dori at 561-804-4417 or firstname.lastname@example.org.