When President Obama nominated then-Georgetown law professor Chai Feldblum for a seat on the Equal Employment Opportunity Commission (EEOC) in 2009, it was clear that the former counsel to the Employment Non-Discrimination Act (ENDA) was going to shake up the Commission. As the first openly LGBT person to sit on the Commission, she did not disappoint. In 2012, the Commission announced its unanimous decision in Macy v. Holder (ATF), holding that discrimination against transgender employees was sex discrimination and actionable under Title VII. On July 16, 2015, the Commission issued an even more revolutionary decision in Complainant v. Foxx (FAA), holding that discrimination on the basis of sexual orientation is also sex discrimination and, therefore, must also be actionable under Title VII.
In the EEOC’s decision, an unnamed complainant filed a complaint alleging that his supervisor would say things like “we don’t need to hear about that gay stuff” whenever the claimant would talk about his partner, and that he was subsequently denied a promotion. In dismissing the case, the FAA treated the complainant’s sexual orientation claim as separate from his sex discrimination claim and therefore not appealable to the EEOC.
The EEOC summarily reversed the FAA, holding that sexual orientation was “inherently a sex-based consideration” and therefore was “necessarily an allegation of sex discrimination under Title VII.” The EEOC rested their decision on three different theories:
First, the EEOC argued that sexual orientation necessarily involves treating employees differently because of their sex. To illustrate, the Commission gave the example of a male employee who is fired for having a picture of his husband on his desk when female employees with pictures of their husbands on their desks are not. This, the Commission declared, would be a classic case of sex discrimination.
Second, the Commission found that sexual orientation discrimination was essentially associational discrimination, which is already recognized in the race discrimination context. If a person cannot be discriminated against because of the race of their spouse, then so too should they be protected from discrimination because of the gender of their spouse.
Finally, the Commission recognized that discrimination against gays and lesbians is tinged with sex stereotypes, or expectations about what men or women should or should not do, which is yet another form of prohibited sex discrimination.