EEOC tells Eleventh Circuit that sexual orientation discrimination = sex discrimination
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Monday, January 11, 2016

EEOC tells Eleventh Circuit that sexual orientation discrimination = sex discrimination

By Pamela Wolf, J.D. In an amicus brief filed in Burrows v. College of Central Florida, the EEOC hopes to school the Eleventh Circuit on sexual orientation discrimination, asserting that it is in fact cognizable as sex discrimination prohibited under Title VII. This is the first time the Commission has “taken the position in federal court that sexual orientation discrimination is sex discrimination,” according David Wachtel, a founding partner of the plaintiff’s firm Bernabei and Wachtel and member of the Employment Law Daily Advisory Board. “The EEOC did take that position in deciding federal employees’ claims, so it is not completely new or surprising, but it is a major step,” he added. About the agency’s brief, EEOC Commissioner Chai Feldblum tweeted, “Next steps need to come from the courts.” In an amicus brief filed in the Eleventh Circuit on January 6, the EEOC takes issue with a district court’s rejection of a lesbian professor’s religious discrimination and gender stereotyping claims on the grounds that each “amounted to a claim of sexual orientation discrimination,” which was not cognizable under Title VII, according to the court. The agency noted that it also filed an amicus brief in Evans v. Georgia Regional Hospital, No. 15-15234, which raises the same question. Why does sexual orientation discrimination equal sex discrimination? The EEOC says that the district court got it wrong for three rather persuasive reasons based on “longstanding interpretation of Title VII’s prohibition against sex discrimination”:
  • Sexual orientation discrimination necessarily involves sex stereotyping since it results in the adverse treatment of individuals because their orientation fails to conform to heterosexually defined gender norms, and discrimination based on gender stereotypes violates Title VII, as explained the Supreme Court’s Price Waterhouse v. Hopkins ruling and the Eleventh Circuit’s 2011 decision in Glenn v. Brumby.
  • Sexual orientation discrimination amounts to gender-based associational discrimination, which courts, including the Eleventh Circuit, “have routinely held … is actionable under analogous circumstances implicating race.”
  • Title VII generally bars sex-based considerations in the employment context, and discrimination based on sexual orientation necessarily requires the impermissible consideration of an individual’s sex.
The Eleventh Circuit has not yet determined whether the Title VII prohibition against discrimination against employees “because of . . . sex” applies to discrimination based on sexual orientation. Answering the question for the appeals court, the EEOC wrote: “An employer that discriminates against an employee based on sexual orientation necessarily discriminates based on sex, in violation of Title VII. The district court’s perfunctory rejection of Burrows’s gender stereotyping claim as ‘merely a repackaged claim for discrimination based on sexual orientation, which is not cognizable under Title VII,’ was therefore simply wrong.”

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