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EEOC rules workplace sexual orientation discrimination illegal

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In what is being hailed as a historic development, the U.S. Equal Employment Opportunity Commission has held in a divided ruling that workplace sexual orientation discrimination is illegal under federal law.

Current federal law does not explicitly extend civil rights protections to lesbian, gay, bisexual and transgender employees.

Wednesday's 3-2 ruling by the commission directly applies only to federal workers.

However, “While the decision arose from a federal-sector case where we have adjudicatory authority, its reasoning and application extend to the entire EEOC, including how we will look at investigations, conciliations and litigation,” an EEOC spokeswoman said in a statement.

The case was filed by an unidentified complainant who worked as a supervisory air traffic control specialist at the International Airport in Miami, who charged that he had been denied a position as a permanent front line manager because he was gay.

The complaint was dismissed by the agency on the grounds it had not been filed in a timely fashion, and the complainant appealed the decision to the five EEOC commissioners.

The commission, which held the complaint was timely, said in its ruling that sexual orientation discrimination was prohibited under Title VII of the Civil Rights Act of 1964.

“When an employee raises a claim of sexual orientation discrimination as sex discrimination under Title VII, the question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. It is not,” said the ruling.

“Rather the question for purposes of Title VII coverage of a sexual orientation claim is the same as any other Title VII case involving allegations of sex discrimination — whether the agency has 'relied on sex-based considerations' or 'take(n) gender into account' when taking the challenged employment action,” said the ruling, quoting the U.S Supreme Court's ruling in Price Waterhouse vs. Hopkins. The high court held in that 1989 ruling that a plaintiff can rely on gender-stereotyping evidence to show that discrimination occurred.

This was the case here, said the ruling and the “(c)omplainant, therefore, has stated a claim of sex discrimination.”

“Now, anyone who works for an employer with 15 or more employees can file a charge of sex discrimination with the EEOC if she is discriminated against because of her sexual orientation or gender identity or expression,” said the New York-based American Civil Liberties Union, in a statement.