Is Sexual Orientation a Protected Class?


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Earlier this month, the EEOC filed an amicus brief (a brief filed by a non-party in support of a particular position) in a sexual orientation lawsuit pending before the 11th Circuit Court of Appeals in Burrows v. College of Central Florida.  Within that brief, the EEOC takes the position that sexual orientation discrimination is “sex discrimination” prohibited by Title VII.

This is not a surprising position – the EEOC, the federal agency charged with investigating violations of federal employment laws, ruled in July of 2015 that it would find sexual orientation discrimination unlawful under Title VII. Why is this blog-worthy news, then, you ask? Because of one of the EEOC’s arguments. In the past few years, the Federal Employment and Non-Discrimination Act, which would make it unlawful to discriminate against employees and applicants on the basis of sexual orientation, has repeatedly failed to pass in Congress. The EEOC’s new position – we don’t need it to make the federal courts agree with us.

As background, Burrows involves a former employee who argues that she was discriminated against based on her sexual orientation, specifically, her former employer was not fond of her marrying another woman. The trial court initially granted summary judgment to College of Central Florida and dismissed the case. Ms. Burrows filed an appeal. In its brief on Ms. Burrows’ behalf, the EEOC essentially takes the position that it doesn’t need ENDA. According to the agency, Title VII, which prohibits discrimination on the basis of race, sex, color, national origin, and religion, is broad enough to encompass Ms. Burrows’ claims. According to the EEOC, courts’ tendencies to hold gender stereotyping constitutes sex discrimination prohibited by Title VII demonstrates that sexual orientation discrimination should be given the same protection. The EEOC argues that sexual orientation discrimination necessarily involves gender stereotyping – so, both violate Title VII’s prohibitions.

I hear the EEOC’s point – and it is not a huge stretch in practice (claims of gender stereotyping by transgendered persons have greatly increased in recent years and such claims are routinely given protection under Title VII), but, no federal appeals court has ever ruled that Title VII’s ban on sex discrimination extends to bias based on sexual orientation.

My prediction – it is unlikely that the 11th Circuit expands Title VII to include “sexual orientation,” but, point taken. Gender stereotyping and sexual orientation discrimination are overlapping concepts.  Even assuming the 11th Circuit will be reticent to read an entirely new protected class into the statute, businesses should stay attuned to this issue. The best strategy – because of the laws prohibiting discrimination on other bases, including prohibitions against gender stereotyping, employers should operate workplaces devoid of any such bias and harassment. If your workplace could use a refresher course on avoiding discrimination lawsuits or your employee handbook has been collecting dust, contact me about workplace training opportunities, handbook review and modifications, or a workplace audit to identify areas of potential liability for your business.