The EEOC has brought it’s first discrimination lawsuits on behalf of gay workers, arguing that the federal law that covers sex discrimination also prohibits sexual orientation discrimination. This was no surprise, since EEOC issued a decision in July saying sexual orientation discrimination was illegal under Title VII.
Here’s EEOC’s reasoning:
Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. “Sexual orientation” as a concept cannot be defined or understood without reference to sex. A man is referred to as “gay” if he is physically and/or emotionally attracted to other men. A woman is referred to as “lesbian” if she is physically and/or emotionally attracted to other women. Someone is referred to as “heterosexual” or “straight” if he or she is physically and/or emotionally attracted to someone of the opposite-sex. Sexual orientation refers to the sex of those to whom one is sexually and romantically attracted.” It follows, then, that sexual orientation is inseparable from and inescapably linked to sex and. therefore, that allegations of sexual orientation discrimination involve sex-based considerations. One can describe this inescapable link between allegations of sexual orientation discrimination and sex discrimination in a number of ways.
Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex. For example, assume that an employer suspends a lesbian employee for displaying a photo of her female spouse on her desk , but does not suspend a male employee for displaying a photo of his female spouse on bis desk. The lesbian employee in that example can allege that her employer took an adverse action against her that the employer would not have taken had she been male. That is a legitimate claim under Title VII that sex was unlawfully taken into account in the adverse employment action. (“Such a practice does not pass the simple test of whether the evidence shows ‘treatment of a person in a manner which but for that person’s sex would be different.’”). The same result holds true if the person discriminated against is straight. Assume a woman is suspended because she has placed a picture of her husband on her desk but her gay colleague is not suspended after he places a picture of his husband on his desk. The straight female employee could bring a cognizable Title VII claim of disparate treatment because of sex.
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