Drummond Woodsum Attorneys at Law

Portland, ME        207.772.1941
Portsmouth, NH        603.433.3317
Manchester, NH        603.716.2895
Lebanon, NH        603.448.2221


September 1, 2015

On July 16, 2015, the EEOC issued a decision in Complainant v. Dep't of Transportation,[1] holding that Title VII of the Civil Rights Act of 1964 ("Title VII") affirmatively prohibits discrimination on the basis of sexual orientation. This decision is viewed as a significant departure from how courts have historically dealt with claims for sexual orientation under Title VII.

The Decision

The Complainant in Complainant v. Dep't of Transportation worked as a Supervisory Air Traffic Control Specialist at the Department of Transportation's Federal Aviation Administration Southern Region Air Traffic Control Tower/International Airport in Miami, Florida. He had been employed as a temporary Front Line Manager at the Miami facility since 2010. A permanent Front Line Manager position opened at the Miami facility in June of 2012, and Complainant expressed his interest in the permanent position. Complainant was not selected for the position, and he filed a complaint with the Department of Transportation, alleging that he was not selected for the position because he was gay.

Complainant specifically alleged that his direct supervisor, who had been involved in the section process for the permanent position, had made several negative comments to him about his sexual orientation. These included telling Complainant that any references to his male partner were "a distraction in the radar room" and that "[w]e don't need to hear about that gay stuff," after he referenced a vacation he took with his partner.

After investigating Complainant's complaint, the Department of Transporation stated that his claims for discrimination based on his sexual orientation were not covered by Title VII and could only be processed through internal policies. The EEOC disagreed. Specifically, the EEOC found 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."

For years, the EEOC and courts have taken the position that Title VII prohibits discrimination on the basis of sex, including stereotyping on the basis of sex and gender roles. Thus, when an employer discriminates against an employee on the basis that the employee is too masculine, too effeminate, or otherwise does not conform to sex-based expectations, the employer violates Title VII. However, neither the EEOC nor courts have widely accepted this analysis in the context of sexual orientation discrimination, until now.

Now, the EEOC has held that discriminating against someone on the basis of his/her sexual orientation is also discrimination on the basis of sex/gender stereotypes because it is discrimination based on the fact that the employee is in a relationship with or attracted to an individual who is not of the sex that the employer believes a male or female employee should be sexually or emotionally attracted to. Furthermore, it is the EEOC's position that when an employer treats a male employee with a male partner differently than the employer would treat a female employee with a male spouse, the employer is treating the employee differently based on his/her "sex" or his/her "association" with a romantic partner of the same sex.

While the EEOC acknowledges that courts have typically held that Title VII does not prohibit discrimination because of sexual orientation, it claims that court analyses have been flawed and based primarily on the belief that "Congress in 1964 did not intend Title VII to apply to sexual orientation and, therefore, Title VII could not be interpreted to prohibit such discrimination," a consideration the EEOC claims is irrelevant. Similarly, the EEOC discounts claims that failed efforts to pass federal legislation should preclude attempts to find sexual orientation coverage under Title VII, since it takes the position that Title VII's sex-based discrimination prohibitions already provide adequate protection.

Specifically, in Complainant v. Dep't of Transportation the EEOC held that:

We apply the words of the statute Congress has charged us with enforcing. We therefore conclude that Complainant's allegations of discrimination on the basis of sexual orientation state a claim of discrimination on the basis of sex. We further conclude that allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex. We further conclude that allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex. An 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. Agencies should treat claims of sexual orientation discrimination as complaints of sex discrimination under Title VII . .


While the EEOC's decision in Complainant v. Dep't of Transportation has no precedential value outside of the Federal government, the EEOC does conduct initial investigations into discrimination claims, represents private employees, and often gets involved in the settlement of discrimination claims. Thus, its position on the viability of sexual orientation-based discrimination claims is important. In addition, courts often look to the EEOC's interpretation of discrimination laws when applying the law to cases before them.

As New Hampshire and Maine already have state laws prohibiting discrimination on the basis of sexual orientation, the EEOC's newly defined position should have little day-to-day impact on New Hampshire and Maine employers. However, if the EEOC's position is adopted by the courts, it will allow employers to adjudicate sexual orientation claims in federal, rather than state, court, which is often-times a preferable location to litigate certain claims.

[1] EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 16, 2015).

Related Professional

  • Laurel A. (Van Buskirk) McClead

  • Related Practice Areas

  • Employment & Labor

  • SchoolLaw.com-logo     DW_Strategic_Consulting_RGB


    © Drummond Woodsum | Attorneys at Law