The Equal Employment Opportunity Commission (EEOC) adopted its current Strategic Enforcement Plan (SEP) for Sexual Orientation Discrimination in December of 2012, but the agency continues to clarify its actual stance through additional legal decisions. Recently, the EEOC made a decision in the case of Complainant v. Foxx that adds further clarity regarding how companies should treat potentially LBGT candidates and employees.

The unidentified male Complainant in Foxx, a temporary managing air traffic controller, alleged that when he mentioned his male partner at work, he would be belittled by his supervisor. When a permanent managing controller position came open and the Complainant was not hired for it, he sued, alleging that the decision was based on his sexual orientation and therefore discriminatory. The complaint was initially dismissed, but on appeal, the EEOC reversed the decision and determined that the Complainant’s claim of sexual orientation discrimination was covered by Title VII. In doing so, the EEOC was accepting prior offensive behavior as evidence of discrimination at a later date.

The EEOC has also proposed a new paradigm, outlining three situations in which a Title VII sexual orientation discrimination claim could arise.

  • An individual experienced treatment that would not have occurred but for the employee’s sex;
  • The treatment was based on the sex of the person(s) with whom the employee associates;
  • The treatment was premised on the “sex stereotype” that individuals should only be attracted to those of the opposite sex.

Federal courts are not bound to follow EEOC decisions, and it is unknown what effect the Foxx decision will have on litigation in the court system—including the civil litigation to arise from Foxx itself. In the meantime, we urge all employers to speak with their labor attorneys regarding this decision.

From the hiring perspective, companies and their representatives should be careful in their handling of candidates who provide or report information that indicates they might be LGBT, even if the information is given outside the context of the interview process. It goes without saying that interviewers should not ask questions about sexual orientation, nor should they make assumptions based upon behavior.

For more information on how EEOC rulings can affect your firm’s hiring practices, or to discuss your company’s current programs and/or policies, we invite you to give us a call at (765) 932-5917.