By: Christina M. Reger

The News:

In a recent decision, the EEOC ruled that a claim for discrimination based on sexual orientation can be brought under Title VII of the Civil Rights Act of 1964. While many commentators have called this ruling “groundbreaking,” for employers in the counties surrounding Philadelphia, it creates more inconsistency and confusion.

Why Do I Care:

Federal courts have not yet weighed in on this recent EEOC decision. However, the Third Circuit has previously ruled (in 2001) that Title VII does not cover discrimination based on sexual orientation. A lot has changed since 2001, including amendments to the Philadelphia Fair Practices Ordinance which prohibits discrimination based on sexual orientation in Philadelphia.

But what about my business outside of Philadelphia County?

Well, as of now, your employee may be successful in an EEOC charge against your business for sexual orientation discrimination, but you, the employer, will likely prevail on appeal in court – a costly battle to undertake for a small or mid-sized business. Employers in the counties surrounding Philadelphia should be mindful and align their policies with the more stringent standards for the greatest protection.

The Nitty Gritty:

The case involved a Supervisory Air Traffic Control Specialist at a Agency’s Southern Region, Air Traffic Control Tower in Miami, Florida who alleged that he was passed over for a promotion to a permanent position because he was an openly gay male.

The EEOC interpreted Title VII’s prohibition of sexual discrimination to prohibit employer from “’rel[ying] on sex-based considerations’ or take gender into account when making employment decisions.” The Commission held, “[s]exual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”

In reaching its conclusion, the Commission held “[d]iscrimination 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.”

Copy of decision attached here.