Thursday, July 23, 2015


Until recently, most federal courts that had considered the proposition had ruled that Title VII of the Civil Rights Act of 1964 “does not prohibit … discrimination because of sexual orientation.” Dawson v. Bumble & Bumble, 398 F.3d 211, 217 (2d Cir. 2005) (quoting Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000). The courts’ view was that “Congress had only the traditional notions of ‘sex’ in mind” when it enacted Title VII and that those “traditional notions” did not include sexual orientation. DeSantis v. Pacific Telephone & Telegraph Co., 608 F.2d 327, 329 (9th Cir. 1979), abrogated by Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864, 875 (9th Cir. 2001). 

Recently, the courts’ views on the subject have been changing. In part, this change in view stems from a revisitation of the import of the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which held that Title VII protected persons alleging discrimination on the basis of gender stereotypes. 

On July 15, 2015, the U.S. Equal Employment Opportunity Commission (EEOC) held in a case arising out of the federal sector that Title VII prohibits discrimination based on sexual orientation and sexual preference. Complainant v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency, involved a claim by a supervisory air traffic control specialist that he was not selected for a position as a front line manager because he is gay. The federal agency involved, the FAA, denied the claim on timeliness grounds, but the claimant appealed to the EEOC on both procedural grounds and on the substantive ground of discrimination on the basis of sex (sexual orientation). 

On appeal, the EEOC ruled that “Complainant … has stated a claim of sex discrimination. Indeed, we conclude 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.” In so ruling, the EEOC engaged in a detailed analysis showing the evolution of the concept of sex discrimination, including the evolution of the EEOC’s own position on the subject. 

While the extent to which the courts accept the EEOC’s position on this subject may depend on the views of the specific courts that first have occasion to consider the analysis, it is a virtual certainty that the Anthony Foxx case will generate an increase in the number of federal court complaints alleging that discrimination against gays and lesbians is prohibited by Title VII. And while sexual orientation is a protected class under the Illinois Human Rights Act, the analysis contained in the Anthony Foxx case means that those alleging discrimination on the basis of sexual orientation or sexual preference now may have a federal, as well as a state, remedy. 

The existence of a possible federal remedy is not insignificant. Complainants often find the federal courts provide a speedier, less cumbersome, and more effective remedy than the remedies provided under the Illinois Human Rights Act. Therefore, local government employers in Illinois should be aware of this development so that any necessary steps can be taken to prevent discrimination on the basis of sexual orientation or sexual preference.