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[i] (August 11, 2015)

handle is hein.crs/crsmthaaflc0001 and id is 1 raw text is: Legal Sidebar Federal Law Prohib its Sexual Orintation Discrimination, Ru es EEOC 08/11/2015 In a case with potentially far-reaching implications, the Equal Employment Opportunity Commission (EEOC) recently ruled that federal law prohibits employment discrimination on the basis of sexual orientation. The agency based its decision on its interpretation of TA, a statute that prohibits employment discrimination on the basis of sex, among other factors. However, the EEOC's ruling is not binding on the federal courts, which have generally declined to extend Title VII's protections to cover claims based on sexual orientation. As a result, the effect of the ruling may be limited if the federal courts refuse to adopt its reasoning. Currently, there is no federal law that expressly prohibits employment discrimination on the basis of sexual orientation, although there are several civil rights statutes that bar discrimination in employment on other grounds, including Title VII. In general, Title VII's prohibition against discrimination on the basis of sex has raditionally been interpreted .t. exclude discrimination on the basis of sexual orientation. Although some have argued that sex discrimination encompasses sexual orientation discrimination, the federal appeals courts have generally rejected that theory, reasoning that the prohibition against sex discrimination refers only to the traditional definition of biological sex and that Congress did not intend Title VII to encompass claims based on sexual orientation. It is important to note, however, that courts have held that the fact that a victim of discrimination is lesbian, gay, bisexual, or transgender (LGBT) does not preclude a claim under Title VII. In the employment context, the Supreme Court has recognized that sex discimination may encmpass same s haramen. The Court has also ruled that gender .tereotyping is a frm of i n n I Thus, there may be circumstances in which discrimination against LBGT individuals nevertheless constitutes a form of sex discrimination that violates Title VII. Against this backdrop, the EEOC's ruling appears at first glance to signify an expansion of the availability of legal protections for LGBT individuals. At issue in the case was a Federal Aviation Administration (FAA) employee's claim that his agency had engaged in unlawful sexual orientation discrimination when it refused him a promotion. The EEOC not only determined that the FAA had relied on sex-based considerations when denying the employee a promotion, but also reached the broader conclusion 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. In reaching this conclusion, the EEOC cited several factors. First, according to the agency, discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. Second, reasoned the EEOC, sexual orientation discrimination involves treating an employee less favorably because of the employee's sex or because of the sex of a person with whom the employee associates. For example, noted the agency, an employer who distinguishes between a male and female employee, each of whom has a male spouse, is taking the sex of the employee into account when discriminating on the basis of sexual orientation. Finally, the EEOC determined that sexual orientation discrimination relies on gender stereotypes that constitute unlawful sex discrimination. As noted above, the federal courts have generally reached the contrary conclusion, namely that Title VII's prohibition against sex discrimination does not extend to cover sexual orientation discrimination. In its decision, the EEOC criticized these rulings on several grounds. First, the agency cited cases in which the courts have ruled in favor of LGBT individuals who were victims of unlawful gender stereotyping. Although the vast majority of these cases involve ender idenatily discrimination, a handful have applied similarasning to cases involving sexual orientation discrimination, as has the agen-cy itself. The EEOC also criticized cases in which the courts simply cite earlier and

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