EEOC, Some Courts Expanding Sex Discrimination to Include LGBT Discrimination

Published in Employment Discrimination (Monday, May 22, 2017 2:13 pm)

With marriage equality now the law of the land, prohibiting employment discrimination is the new frontline in the quest for full LGBT equality in the United States.   The concern that LGBT Americans can get married on Saturday and fired on Monday is all too real in a majority of states, including Pennsylvania.

According to the Lambda Legal Defense and Education Fund, almost half of all LGBT employees go to work every day in this country without protection from state antidiscrimination laws. It is no surprise that workplace concerns remain the number one topic for this national organization’s legal help desk calls.

Efforts to prohibit workplace discrimination on the basis of sexual orientation or gender identity have stalled in the Pennsylvania Legislature, but there is some good news to report at the federal level.

The key federal law, Title VII of the Civil Rights Act of 1964, prohibits discrimination in the terms or conditions of employment “because of sex.” Title VII applies to employers with 15 or more employees. In July 2015, the U.S. Equal Employment Opportunity Commission, the agency charged with enforcing Title VII, ruled in Baldwin v. Foxx that a federal employee could bring a claim of sexual orientation discrimination under the statute.

Mr. Baldwin filed a charge with the EEOC alleging that he had been denied a permanent position as an Air Traffic Control Manager because he was gay. As evidence of gay bias, he cited negative comments by his supervisor, including being told “we don’t need to hear about that gay stuff” when Baldwin mentioned he and his partner had attended Mardi Gras. Baldwin also alleged that his supervisor told him on multiple occasions that he was a distraction in the radar room when he mentioned his partner in conversations with his coworkers.

On these facts, the EEOC ruled that Baldwin had stated a claim of sex discrimination under Title VII. “Allegations of discrimination on the basis of sexual orientation,” the EEOC stated, “necessarily state a claim of discrimination on the basis of sex.” In other words, had Mr. Baldwin’s partner been female instead of male, he would not have been subjected to his supervisor’s derogatory comments.

Why is the Baldwin decision so significant? First, some background.

Prior to Baldwin, the EEOC and the federal courts had distinguished between sex discrimination claims based on gender non-conformity, or sex stereotyping, which could be brought under Title VII, and claims based solely on sexual orientation, which could not.   Put simply, effeminate men and masculine women could bring claims under Title VII, but gay men, lesbians and bisexuals who passed for straight, or otherwise appeared and behaved in conformance with their gender, could not.

The notion that sex stereotyping is a form of illegal sex discrimination stems from a 1989 U.S. Supreme Court decision, Price Waterhouse v. Hopkins. In that case, Ann Hopkins was denied a partnership because she failed to dress, walk and otherwise behave in a stereotypically feminine manner. One of the partners even advised her to take a course in charm school. The Supreme Court held that PW discriminated against Ms. Hopkins “because of sex” because she failed to conform to how the male partners believed a woman should appear and behave in the workplace.

Nine years later, in Oncale v. Sundowner Offshore Services, the Supreme Court held that Title VII covered claims of male-on-male and other same-sex sexual harassment.

At the time, this was considered a victory for LGBT rights in the workplace, even though the record in the case did not reveal whether the plaintiff-victim in the case, or his male tormentors, were gay or straight. The facts in the case, however, strongly suggested that Mr. Oncale was bullied and subjected to humiliating conduct because of his sexual orientation.

In an opinion written by Justice Scalia, the Supreme Court also recognized that the statutory language “because of sex” could be construed to cover discriminatory conduct beyond that which Congress might have intended when the law was passed in 1964. Indeed, the EEOC cites Oncale to support its expanded interpretation of the text of Title VII.

So Baldwin is significant because the EEOC rejected the need to distinguish between claims of gender stereotyping and claims of sexual orientation discrimination. “Sexual orientation as a concept,” said the agency, ” cannot be defined or understood without reference to sex.”

Moreover, under Baldwin, an employee can show that the sexual orientation discrimination he or she experienced was sex discrimination under three alternative approaches:

  • First, it involved discriminatory treatment that would not have occurred “but for” the individual’s sex. (Here, the EEOC uses the example of suspending a lesbian employee for displaying a photo of her female spouse but not a male employee for doing the same.)
  • Second, because the discriminatory treatment was based on the sex of the person the individual associates with; and/or
  • Third, because the discriminatory treatment was premised on the fundamental sex stereotype, norm, or expectation that individuals should be attracted only to those of the opposite sex.

EEOC decisions are not binding on the courts, however. Since July 2015, when Baldwin was decided, a number of federal courts have considered its impact on claims of sexual orientation discrimination. The decisions are split, leaving the ultimate decision to the U.S. Supreme Court on whether claims of sexual orientation discrimination can be brought under Title VII. In the meantime, the EEOC will continue to process and investigate charges of sexual orientation discrimination as charges of discrimination “because of sex.”

The upshot is that LGBT Pennsylvanians who work for employers with at least 15 employees may have recourse under federal law to address discriminatory conduct in the workplace even as efforts to expand LGBT protections under Pennsylvania law continue to fall short.


The information contained in this website is provided solely for informational purposes. It should not be construed as legal advice, is not a substitute for legal counsel, and is not intended to create an attorney-client relationship. For legal advice or answers to specific questions, please contact Ms. Baulig.

Baulig Law focuses on employment issues

Problems with your employees? Problems with your employer? Frustrated with government regulations? Baulig Law provides experienced, cost-effective legal services for businesses and individuals in the areas of employment discrimination, wages and overtime, workplace safety and health, and health care compliance.

Laurie T. Baulig
Laurie T. Baulig

Attorney at Law

With a career spanning three decades, Laurie Baulig has been a litigator for the federal government, a private practitioner, in-house counsel for two business trade associations, and a teacher at a liberal arts college.  She founded Baulig Law with the idea that, at its best, law is a service profession that should be transparent, accessible and affordable.  The firm’s focus on employment law also reflects her philosophy that both businesses and their employees benefit when the workplace is free from discrimination, unfair wage practices, and unsafe or unhealthy conditions.

Laurie began her career as an antitrust litigator for the Federal Trade Commission in Washington, D.C.  She later shifted her focus to employment law as in-house counsel for the American Trucking Associations, one of the largest business trade groups in the nation’s capital.   While at ATA, she travelled across the country explaining the requirements of new laws passed by Congress – such as the Americans with Disabilities Act, Civil Rights Act of 1991, and Family and Medical Leave Act – and regulatory proposals that would have an impact on the trucking industry.   This experience not only confirmed her passion for employment law, but also awakened her interest in teaching.   So she left D.C. for Lancaster, PA in 2008 to serve as adjunct assistant professor at Franklin & Marshall College.  From 2008-13, she taught Human Resources Management, Gender and the Law, and other courses affecting legal rights and responsibilities in the workplace.

More about Baulig Law