On July 15, 2015, the EEOC issued a decision holding that discrimination based on sexual orientation constitutes sex discrimination in violation of Title VII. This decision allows gay, lesbian and bisexual employees to file workplace discrimination complaints with the EEOC. (Complainant, EEOC DOC 0120133080, (July 16, 2015).)

Complainant, a gay man, worked as a Supervisory Air Traffic Control Specialist and in October 2010, was appointed a temporary Front Line Manager (FLM) for the Federal Aviation Administration (FAA). Complainant's supervisor was aware of Complainant's sexual orientation and allegedly made several negative comments on occasions in the workplace when Complainant mentioned his male partner. In July 2012, Complainant learned that he was not selected for a permanent FLM position at an FAA facility in Miami. Although Complainant had not formally applied for the position, it was his understanding that all temporary FLMs were considered for any permanent FLM vacancy.

In August 2012, Complainant contacted an EEO counselor and in December 2012, Complainant filed a formal EEO complaint with the FAA claiming that he was discriminated against on the basis of sex related to his sexual orientation. The FAA investigated and issued a Final Agency Determination (FAD) that did not address Complainant's claim on the merits but instead found that the complaint was untimely because, according to the Agency, the 45-day period for contacting an EEO counselor (which federal employees must do to initiate an administrative discrimination complaint and exhaust their remedies under Title VII) began running in October 2010, when Complainant was first aware that his temporary position would expire in two years. Since Complainant had not contacted an EEO counselor until August 2012, his complaint was untimely.

Complainant appealed the FAA's decision to the EEOC.

On appeal, the EEOC found that:

Title VII's prohibition of sex discrimination means that employers may not rely on sex-based considerations or take gender into account when making employment decisions. According to the EEOC, sexual orientation is inherently a sex-based consideration because sexual orientation refers to the sex of those to whom a person is sexually and romantically attracted.

The EEOC listed several ways in which sexual orientation can manifest as sex discrimination, including when an employer treats an employee differently or less favorably:

The EEOC rejected a commonly-made argument that because Congress has not passed legislation expressly prohibiting sexual orientation discrimination, it must have intended to exclude sexual orientation from Title VII. The Commission pointed out that when courts held that Title VII protected individuals who were discriminated against because of their relationships with a person of a different race, the courts did not create a new "people in interracial relationships" protected class. Similarly, the Supreme Court did not create a new class of "masculine women" in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the case that established the theory that sex stereotyping is a form of sex discrimination. Rather, the EEOC applied the words of the statute to conclude that sexual orientation discrimination is sex discrimination when a person is:

The EEOC found that Complainant's allegation that the FAA relied on sex-based considerations and took his sex into account in its decision on the permanent FLM position stated a claim of sex discrimination. The EEOC remanded the matter to the FAA for consideration of Complainant's claims on the merits.

This decision was issued by the full Commission and is binding on the federal government as an employer. Although not binding on private employers, the decision establishes the EEOC's position that sex discrimination under Title VII includes sexual orientation discrimination. Private employers should be aware that the EEOC will accept charges of sex and sexual orientation discrimination from gay, lesbian and bisexual employees.