Although many state and local employment laws prohibit discrimination on the basis of sexual orientation, the plain terms of the broadest federal law prohibiting discrimination in the workplace, Title VII of the Civil Rights Act of 1964, does not. Title VII prohibits employment discrimination on the basis an employee’s race, color, religion, sex or national origin. Congress has consistently rejected efforts to add sexual orientation to the class of protected characteristics and federal courts have largely declined to find sexual orientation discrimination included within the parameters of the statute.
During the last few years, however, the United States Equal Employment Opportunity Commission has interpreted Title VII as precluding sexual orientation discrimination. In 2015, for example, the EEOC accepted more than 1,100 charges of discrimination asserting sexual orientation discrimination and asserts that it obtained $3 million in monetary benefits for sexual orientation discrimination complainants. Last summer, the EEOC issued a ruling in Baldwin v. Dep’t of Transp., a federal sector case, expressly holding that Title VII precludes employment discrimination on the basis of sexual orientation. Although the EEOC acknowledged in its decision that sexual orientation is not explicitly identified in Title VII as a prohibited basis for employment actions, it reasoned that “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” Since Baldwin, which is not binding on the federal courts, the EEOC has previewed its intent to bring a sexual orientation lawsuit under Title VII.
That day came on March 1, 2016, when the EEOC filed separate Title VII sexual orientation lawsuits in the United States District Courts in Baltimore and Pittsburgh. The EEOC, however, faces an uphill battle in both lawsuits given what appear to be binding appellate court rulings contrary to the EEOC’s interpretation of Title VII. In 1996, in Wrightson v. Pizza Hut of America, Inc., the Fourth Circuit expressly noted that “Title VII does not afford a cause of action for discrimination based upon sexual orientation.” As late as August of last year, in Murray v. North Carolina Dept. of Public Safety, the Fourth Circuit cited Wrightson as “recognizing that Title VII does not protect against sexual orientation discrimination.” Likewise, the Third Circuit expressly held in 2005 (Kay v. Independence Blue Cross), 2009 (Prowel v. Wise Business Forms, Inc.) and 2011 (Pagan v. Gonzalez) that sexual orientation employment discrimination claims are not cognizable under Title VII. In light of this precedent, it would not be surprising if both lawsuits are dismissed at the trial court level, and the EEOC is likely gearing up for an appellate and eventual Supreme Court battle over whether Title VII will be interpreted to include sexual orientation as a protected characteristic.
The political battle over who will replace the late Justice Scalia just got a little more interesting for employment attorneys.