By: Bianca S. Watts

Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination on the basis of sex. The U. S. Equal Employment Opportunity Commission (“EEOC”) is the federal agency charged with enforcing Title VII’s prohibition of employment discrimination on the basis of sex, and it recently determined that prohibited sex discrimination under Title VII includes discrimination based on “sexual orientation.”

In Complainant v. Foxx, E.E.O.C. Appeal No. 0120133080 (July 16, 2015), the employee alleged that he was not promoted because he was a gay man. The EEOC determined that the employee successfully stated a claim for sex discrimination under Title VII. In its ruling, the EEOC determined that sexual orientation discrimination is a form of sex discrimination for three reasons. First, because “sexual orientation” cannot be defined without referring to sex, sexual orientation discrimination is sex discrimination “because it necessarily entails treating an employee less favorably because of the employee’s sex.” Second, sexual orientation discrimination constitutes sex discrimination because it is a form of associational discrimination-treating an employee differently because the employee associates with a person of the same sex. Finally, sexual orientation discrimination is sex discrimination since it is based on gender stereotypes. The idea that a man should only be attracted to women and vice versa is the ultimate gender stereotype.

Federal courts generally defer to EEOC decisions, but do not have to follow them. A number of federal courts of appeal, before the EEOC’s decision, determined that Title VII does not encompass discrimination based on sexual orientation. Regardless of whether federal courts follow the EEOC’s decision, employment discrimination based on sexual orientation is specifically prohibited under California’s Fair Employment and Housing Act. The EEOC’s recent decision presents an opportunity for employers – especially employers who operate in other states besides California – to review their discrimination policies and practices to ensure compliance with the state and federal discrimination laws in each state where they operate, particularly with respect to sex and gender discrimination (e.g., gender, gender identity, gender expression, and sexual orientation).

DID YOU KNOW…

Employers who fail to provide meal and rest periods are required to pay premium pay (an additional hour of pay) for each workday that their employees miss meal or rest periods. Their employees are automatically entitled to premium pay without having to request it, and the employer’s failure to pay such premium pay may constitute an unfair business practice. Safeway, Inc. v. Superior Court of Los Angeles County, 238 Cal.App.4th 1138 (2015) (upholding class certification for violation of Unfair Competition Law based on employer’s failure to pay premium pay when due).