Is Sexual Orientation Now a Protected Class?

Miller & Martin PLLC Alerts | July 20, 2015

by Stacie Caraway

In our June 26 alert regarding the U.S. Supreme Court's same-sex marriage decision in Obergefell v. Hodges, we said we would continue to keep you posted regarding new developments in this area of the law.

Some of you may have heard that last Wednesday, the EEOC unilaterally proclaimed that Title VII protects sexual orientation, a position which has not been supported by federal courts, which have been interpreting Title VII since its passage in 1964.

So, what does this mean for employers in Tennessee, Georgia, Alabama and other states which do not have state laws protecting sexual orientation?1 

It means you have two choices: (1) agree with the EEOC and go ahead and amend your handbooks, etc. to reflect this Agency's unilateral proclamation; or (2) wait to see if the federal courts in the locations where you have operations will change their minds to agree with the EEOC on this point (or if Congress amends Title VII to do so).

It is inevitable in the coming months that EEOC Charges will be filed based on the EEOC's proclamation. But federal courts remain the final arbiters of Title VII as a federal law. The collective wisdom among attorneys who practice in this area of the law nationwide is that, particularly in the Sixth Circuit and others which traditionally have not accepted the EEOC's interpretation of other federal laws such as the ADA, they will not follow the EEOC's unilateral proclamation this time – particularly since it also directly conflicts with the majority of all federal courts nationwide (and even the EEOC's own prior interpretation of Title VII!) on this issue. Federal courts are not constitutionally or otherwise bound to accept or even consider the EEOC's interpretation of Title VII.

This means that the employers who choose option (2) above will need to be prepared to defend a possible "for cause" finding on a sexual orientation discrimination Charge in court (or settle it through an EEOC mediator at the Charge stage after a "for cause" finding). It is anticipated that the EEOC will hand-pick a few large employers who choose option (2) and file suit in federal court on behalf of a homosexual charging party employee in order to "test the federal court waters." This is most likely to happen first in more employee-friendly jurisdictions such as the Ninth and Tenth Circuits, which cover most of the states on the West Coast, so that the EEOC's position can potentially gain momentum before the Agency faces challenges in other Circuits.

Two final reminders in this area of the law:

First, although the collective wisdom is that employers still have a choice as to whether to adopt the EEOC's position regarding sexual orientation being a protected class under Title VII, employers choosing option (2) above also should be mindful that homosexual applicants or employees also may assert claims on a pure "gender discrimination" basis, if they can show that the reason they were not hired or were let go, disciplined, not given a promotion, etc. was due to them not fitting the employer's "gender stereotypes" (i.e., not being "manly enough" or "feminine enough" etc.). This would be a pure "gender discrimination" claim under Title VII. So, the best rule of thumb regardless of whether you choose to expressly change your policies to reflect the EEOC's latest proclamation or not is still that employers certainly should not be asking about sexual orientation or using it to make employment decisions (aside from in those very limited areas where it may be related to the job such as in religious organizations). One of the reasons for today's alert, however, is that we have heard of employees confronting Human Resources departments with the EEOC's press release from last week and demanding "equal rights," "an immediate change in the Company's policies, etc.," so we want employers to know what their legal options are in such contexts.

From a practical standpoint, regardless of which of the above options you choose from a Company-wide policy standpoint, the best answer in such confrontations would be that, "The Company has never discriminated on the basis of sexual orientation because, just like a million other personal characteristics which are unique to each individual, it has nothing to do with a person's job. Each employee or applicant is judged on their individual merit." (Again, this answer would be given outside the context of religious organizations or others where sexual orientation could be a job-related factor).

Second, if you are a covered federal contractor or subcontractor, the federal government already requires you to certify in your federal contracts or subcontracts that you will recognize not only sexual orientation but also gender identity as protected classes. This decision is not the same as the EEOC's last week, because through it the federal government was not proclaiming "the law of the land" but merely "a condition of doing business with the federal government."

As always, should you have questions regarding this area of the law or certainly if we can be of assistance regarding any questions which come up from your employees about it, please feel free to contact Stacie Caraway or any other member of our Labor & Employment Law Practice Group.
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1 Just a note that Atlanta has a city ordinance which provides such protection regarding businesses located within the city limits.

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