On July 16, 2015, the EEOC announced that sexual orientation is included within Title VII’s prohibition against sex discrimination in Complainant v. Foxx, 2015 WL 4397641 (EEOC July 16, 2015).  Foxx worked as an air traffic control specialist in Miami, Florida.  He claimed that he was discriminated against in violation of Title VII when he was not selected for a permanent promotion based on his sexual orientation.  Foxx alleged that one of his supervisors said, “We don’t need to hear about that gay stuff” in response to a story about his male partner, and referred to his relationship as a “distraction in the radar room” on numerous occasions.  The EEOC found that the complaint properly stated a claim of sex discrimination because “sexual orientation is inherently a ‘sex-based consideration.’”

In the decision, the EEOC further opined that “[s]exual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”  As such, “[a]n employee could show that the sexual orientation discrimination he or she experienced was sex discrimination because it involved treatment that would not have occurred but for the individual’s sex; because it was based on the sex of the person(s) the individual associates with; and/or because it was premised on the fundamental sex stereotype, norm, or expectation that individuals should be attracted only to those of the opposite sex.”  This expands the EEOC’s previous interpretation that Title VII only encompassed discrimination based on an employee’s failure to conform to gender stereotypes.

While the EEOC’s decision is momentous for the LGBT community, it is not binding on state or federal courts.  Even if courts choose not to adopt the EEOC’s expansive definition of sex discrimination, employers should re-evaluate their current policies to avoid compliance issues with the EEOC.