Labor & Employment

Civil Rights Act's sex-discrimination ban includes orientation, argues EEOC in amicus brief

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The Equal Employment Opportunity Commission argues in an amicus brief filed on Wednesday that employment discrimination based on someone’s sexual orientation is unlawful under Title VII of the 1964 Civil Rights Act.

The filing was made in the 11th U.S. Circuit Court of Appeals, Bloomberg BNA reports. According to the article, no federal appellate court has found that Title VII’s ban on sex discrimination includes bias based on sexual orientation. However the 5th and 6th U.S. Circuit Courts of Appeal have found that employees who experienced bias based on not conforming with gender roles raise Title VII sex discrimination claims.

“The district court held, inter alia, that Burrows’s claim for gender stereotype discrimination necessarily failed because it constituted a claim for sexual orientation discrimination, and sexual orientation claims are not cognizable under Title VII as a matter of law,” the EEOC brief states. “This unduly restrictive interpretation of Title VII is contrary to the understanding of an increasing number of courts (as well as the Commission) that sexual orientation discrimination claims necessarily involve illegal sex stereotyping, illegal gender-based associational discrimination, and impermissible consideration of a plaintiff’s sex, placing them squarely within Title VII’s prohibition against discrimination on the basis of sex.”

The appeal in question involves Barbara Burrows, a former Florida college administrator who argues that she was treated differently because she is a lesbian and married to a woman.

According to her appeal, as the College of Central Florida’s vice president of instructional affairs Burrows oversaw the school’s transition from a community college to a four-year university. She was hired in 2008, and during the first two years, her reviews were favorable, the brief states. The appeal says Burrows was told she was on the career track for being a college president. But in 2011, she was told that the school would not renew her contract, or give her a performance review. The suit says that a male subordinate was then given Burrows’ former job, without a formal competitive search process.

Burrows took a math faculty position with the school at a much lower salary, but was expected to continue work on tasks which had been the responsibility of her former position, according to the brief. Her position was eliminated in 2013, reportedly due to budget considerations, one month after the EEOC issued a no-cause determination to a gender-discrimination complaint she’d filed in 2012. According to the EEOC brief, 10 other full-time positions and 17 vacant potions were also eliminated at that time, though adjunct positions were added. The classes Burrows taught were assigned to other teachers, and Burrows maintains that the school would not consider her for adjunct positions. In the appeal, Burrows alleges that this was retaliatory. She filed suit against the university in November 2013.

In July 2015, a Middle District of Florida U.S. district court judge dismissed Burrows’ case, finding that Title VII does not cover sexual orientation discrimination.

“When it enacted the Civil Rights Act of 1964, Congress may not have considered whether Title VII’s prohibition on discrimination because of sex included discrimination based on an individual’s sexual orientation. But in the years since its enactment, the Supreme Court has repeatedly cautioned that analysis of the statute does not end with consideration of Congress’s initial intent,” says the EEOC amicus brief.

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