U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Wasliington, DC 20507 Complainant V. Anthony Foxx, Secretaiy, Department of Transportation (Federal Aviation Administration}, Agency. Appeal No. 0120133080 Agency No. 2012-24738-FAA-03 DECISION Complainant timely filed an iqipeal with the Equal Employment Cqiportunity Commission (EEOC or Cominission) from the Agency's final Vision, dated July 17, 2013. dismissing his complaint of unlawful enq>loyment discriminaticm alleging a violation of Title VII of tbe Civil Rights Act of 1964 (Title VH), as amended, 42 U.S.C. §§ 2000e-2000e-17. For the reasons that follow, the Commission REVERSES and REMANDS the Agency's final decision. ISSUES PRESENTED The issues presented in this case are (1) whether Complainam's initial contact with an Equal Employmem Opportumty (EEO) Counselor was timely; and (2) whether a conqilaint alleging discrimmation based on sexual orientation in violation of Title Vn of tbe Civil Righis Act of 1964 lies within tfae Commission's jurisdiction.' BACKGROUND At the time of events giving rise to fiiis conqilaint, Conqilainant woiked as a Siqiervisoiy Air Traffic Control ^lecialist at the Agency's Soufiiem Region, Air TYafGc Division, Air TrafHc Control Tower/bitemational Aiiport in Miami, Florida. On August 28, 2012, Ccmqilainant contacted an EEO counselor and loyee 2 would have qualified for conversion to pennanent stams in any event. 5 0120133080 EEOC Jiuisdictile claim diat she was discriminated against based cm sex due to ber non-conforming gender behavior): Deaeffe v. Sky West, Inc.. 2015 WL 2265373, at *6 (D. Colo. May 11. 2015) (denying oiqikiyer's motion to dismiss by finding fiiat plaintifr, a homosexual male, had sufBcienfiy aUeged tbat be feUed to confonn to mate stereotypes by not laking part in male "braggadocio" abom sexual exploits wifii women, ncit making jokes abom gay pQots, designating his same-sex partner as beneficiary, and flying wifii his same sex partner on employer flights) cf Latta v. CXier, 771 F.3d 456, 474 (9fii C^. 2014) (finduig fiiat plamtifiEs bad sufifciendy established tfaat marriage laws in Idaho and Nevada violated tbe Ecpial Protection Clause of die Fourteenth Amendment by discriminating cm fix basis of sexual orientation, but also stating that *fix constitutional restraints the Suprenx Court has long imposed on sex-role stereo^ing . . . may provide anofixr potentiaUy persuasive answer to defendam's fixoiy."); M^ at 495 CBeizon. J. concurring) ("pji bears noting tbat tbe social exchision and state discrinunation against lesbian, gay, bisexual, and transgender pecqile reflects, in large part, disapproval of fixir nonconformi^ wifii genderbased expectatioiis."). 11 0120133080 Sexual orientaticm discrimination and faarassment "[are] often, if not always, motivated by a desire to enforce faeterosexuaUy defined gender norms." Centola v. Potter, 183 F. Su[qi. 2d 403, 410 (D. Mass. 2002). The Centola court continued: In fact, stereotypes about homosexuality are cUrecdy related to our stereotypes about the prcqxr roles of men and women. WfaUe one paractigmatic form of stereotyping occurs wfaen co-workers single out an effeminate man for scom, in feet, tfae issue is fer more ccmiplex. The faarasser may discriminate against an cqxnly gay co-worker, or a co-worker tfaat he perceives to be gay, whether effeminate or not, because he diinks, "real" men should date women, and not other men. !di Those deeper assumpticms and stereotypes about "real" men and "real" women were sinularly noted by the ccmrt in Terveer v. Library of Congress m rejecting tbe govemment*s motion to cUsmiss: Under Tide V n , aUegations tbat an enqiloyer is discriminating against an enqiloyee based cm the employee's non-confoimity witb sex stereotypes are sufficient to establish a viable sex discriminaticm chum. S ^ Price Wateifaouse v. Hopkms, 490 U.S. 228,251 (1989) ("we are beyond d x day when an enqiloyer could evaluate employees by assuming or insisting fiiat they matcfa«l fiie stereotype asscxiat^ with tbeir gnxqi."). Here, Plaintiff faas aUeged that be is "a facmiosexual male whose sexual orientation is not ccmsistent with d x Defendant's perception of accqitable gender roles," diat his "status as a hcmiosexual male cUd not conform to the Defendant's gender stereotypes asscxiated with men under [fais siqiervisor's] siqxrvisicm or at tfae LOC." and tfaat "fais orientaticm as faomosexual faad removed faim from [fais siqiervisor's] preconceived ^fimticm of male." As Plaintiff faas aUeged fiiat Defendant denied faim promoticms and c;reated a faostUe work environment bec:ause of Plaintiffs ncmconformity witfa male sex stereotypes. Plamtiff has met fais buiden of setting forth "a short and plain statement of the claim showing that tfae pleader is entided to relief" Terveer v. BUtington. 34 F. Siqqi. 3d 100,116 (D.D.C. 2014) (citations cmiitted) (first quoting Pl.'s Am. Compl.; fiien quoting Fed. R. C^v. P. 8(a)). In tfae past, courts faave often feUed to view claims of discriinination by lesbian, gay, and bisexual enqiloyees in die straigfatforward manner described above."* Indeed, many ccxirts *' * A review of erases dted for tbe proposition diat sexual orientation is excluded from Title Vn reveals fiiat many courts sinqily cite eartier and dated decisions iridiout ai^ additional analysis. For exanqile. 12 0120133080 have gone to great lengths to distinguisfa adverse enqiloyment actions based on "sex" from adverse enqiloyment actions based on "sexual orientaticm." The stated justification for sucfa uitricate parsing of language faas been die bare condusion that "Tide V n does not prohibit. . . discriinination Ixcause of sexual orientaticm." Dawson v. Bumble & Bumble, 398 F.3d 211, 217 (2d Cir. 20Q5) (quoting Shnonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000)). Fbr diat reason, courts have attenqited to distinguish discrimmation based cm sexual orientation from ctiscrimination based cm sex, even wfaUe noting diat die "boideis [between tfae two classes] are . . . imprecise." W^ (alteration ui origmal)." Some of these decisions reason that COngress in 1964 did not intend Tide V n to aqqily to sexual orientation and, therefore. Tide VO could not be inteipreted to prc^bit such discrimmation. See, e.g., DeSantis v. Pacific Telephone & Telegraph Co., 608 F.2d 327, 329 (9fii Cir. 1979) ("Congress had only the traditional notions of *sex* in mmd" wfaen it passed Tide v n and fiiose "tractitional notions" did not include sexual orientaticm or sexual preference.) abrogated by Nicfaols v. Azteca Restaurant Enteiprises, Inc.. 256 F.3d 864, 875 (9fii Cir. 2001).** in a brief to fix Seventfa Circuit Court of Appeals requesting rehearing liased on various broad declaratoiy statements diat Tide VU does not cover sexual orientation, the EEOC pomted out fiiat only one prevKHis Seventh Circuit case had analyzed the cpiestion of coverage of sexual orientation discriinination under Title VU and fiiat case, decided in 1984, had not lieen reviewed in tight of subsecpiem decisions sucb as Price Wateifaouse. Instead, a string of Sevoifii Circuit panel decisions faad simply reiterated fiie bolding in tfae first case without any further discussiorL Br. EECX Supp. Reh*g 89. Muhammad v. CateroiUar Inc.. ECF No. 49, No. 12-1723 (7fii Cir. Oct. 7, 2014). The Sevemh Circuit denied tbe request for rehearing but reissued its decision withom fix statemenls dial sexual orientation discriniination is not c:overed under Tide VU. S ^ Muhammad v. Caterpillar, 767 F.3d 694 (7fli Cir. 2014). 2014 WL 4418649 (7* Cir. Sept. 9, 2014, as Amended on Denial of Rehearing, Oct. 16.2014). " We do not view fiie liorders between sex discrimination and sexual orieiuation as "imprecise." As we note above, discriminaticm on fix Insis of sexual orientation necessarily involves discrimination on fix basis of sex. " Indeed, the Equal Enqiloymem Opportunity Commission's own understanding of Title Vn*s apptication to sexual orientaticm discrimination has develcqxd over time. Compare Johnson v. U.S. Postal Serv.. EEOC Appeal No. 01911827, 1991 WL 1189760. at •3 (EECX Dec. 19, 1991) Qmlding that Tide VU's imibibition of discrinunation liased cm sex does not include sexual ineference or sexual orientation), and Moniscm v. Dep't of fix Navy, EECX Appeal No. 01930778, 1994 WL 746296, at *3 (EEOC June 16,1994) (afUrming tfaat Tide Vfl's discrimination prohibition does not inchide sexual preference or orientation as a basis), witii Morris v. U.S. Postal Serv.. EECX Qipeal No. 01974524. 2000 WL 226001, at *l-2 (EECX Fcsb. 9,2000) (distinguishing Johnson and Morrison and bolding fiiat complainam stated a valid Tifie VH claim by aUe^ng tbat faer female siqiervisor and former kiver discriminated against ber on fix tiasis of hex sex). Fonner Acting Chairman of fix EECX Stuart Ishimaru acknowledged fix vaiying protections to protect LCiBT enqiloyees and explained tfaat federal decisions have been inconsistent in this area. See Employmem Non-Discrinunation Act of 2009: 13 0120133080 congress may not have envisioned the sqqiUcaticm of Tifie Vn to these situations. But as a unanimous Court stated in Oncale v. Sundowner Offshore Services, Inc., "stamtory prohibiticms often go beycmd the princqial evU [tbey were passed to combat] to cover reasonably conqiarable evUs. and it is ultimately die provisions of our laws rather than the principal concerns of our tegislators by which we are govenxd." 523 U.S. 75, 79, 78-80 (1998) (holding that same-sex harassment is actionable under Titie VII). Interpreting the sex ctiscrimination prohibiticm of Titie Vn to exclude coverage of lesbian, gay or bisexual incUviduals who have eiqxrienced discriminaticm cm the basis of sex inserts a limitation into the text tfaat congress faas not included." Notfaing in die text of Tide Vn "suggests tfaat COngress intended to cxmfine tfae benefits of [die] stamte to faeterosexual enqiloyees alorx." Heller v. Columbia Edgewater Country Chib, 195 F. Supp. 2d. 1212,1222 (D. Or. 2002). Some crourts faave also relied cm tfae feet tfaat Congress has debated but not yet passed legislation eiqiticifiy providing protections for sexual orientaticm. See Bibby v. Hula. COca Cola Botdmg Co., 260 F.3d 257, 261 (3d Cir. 2001) ("Congress faas rqieatedly rejected legislation tfaat would extend Tide VO to cover sexual orientaticm.")." But tfae Siqireme Court faas ruled that "[c]oiigressionaI inaction lacks persuasive significance because several ecpiaUy tenable inferences may be drawn fitim such inaction, including die inference tbat die existing legislation already incorporated tfae offered cfaange." Pensicm Beixfit Guar. COm. v- LTV Com.. 496 U.S. 633, 650 (1990) (citation omittecQ (intemal cpiotation marks omitted). Tfae idea tfaat congressicmal action is required (and inaction is tfaerefore instmctive in part) rests cm tfae notion tfaat protection against sexual orientation discrimination under Tide VII would create a new class of covered persons. But analogous case law confirms tfais is not true. Wfaen ccMirts held that Tide V n protected persons who were discriminated against tiecause of fiieir relationships wifii persons of another n x e , fiie ccxirts did not thereby create a new Hearing on H.R. 3017 Before tbe H. Comm. on Educ. & Labor, lllfli Cong. (2009) (statemem of Stuart J. Isfaimani, Acting Cfaairman, U.S. Equal Enqiloyment Opportunity Ccxnmission). '^ Tide v n pndiibits discrimmation on dx basts of "sex" widiom fordxr definition or restriction and it is not OUT province to modity fiiat text by adding Umhations to it. As fix Siqnenx Court noted recenfiy in a differem context, "[t]be imiblem with this approach is tbe one that inheres in most incorrect interpretations of statutes: It asks to add words to the kiw to produce wfaat is thought to be a desirable result. That is Congress's province." EECX v. Abercrombie A Hidi Stores, Irx.. 575 U.S. (2015), 135 S.Ct 2028,2033,2015 WL 2464053, *4 (2015). '^ S ^ also Medina v. Incoine Support Div.. 413 F J d 1131, 1135 (lOfii Cir. 2005) (citing Bibby and Simonton (see infra) wifii ^iproval); Rene v. MGM Grand Hotel, hx., 243 F.3d 1206, 1209 (9fii Cir. 2001) ("Tifie v n has not lieen amended to prohibit discrimination based on sexual orientatkm."); Simonton V. Runycm, 232 F.3d 33,35 Qd Cir. 2000) ("Congress's refusal to expand the reach of Tide v n is strong evidence of congressional intern."). 14 0120133080 protected class of "people in interracial relationsfaips." See e.g., Deffenbaugh-WiUiams v. Wal-Mart Stores, Inc., 156 F.3d 581. 588-89 (5di Cir. 1998), remstated ni relevant part, WUUams v. Wal-Mart Stores. Inc.. 182 F.3d 333 (5fii Cir. 1999) (en banc). And wben die Siqireme COurt decided that Tide Vn protecrted persons discriminated against because of gender stereotypes held by an enqiloyer, it ttid not thereby create a new protected class of "masculine women." See Price Waterhouse, 490 U.S. at 239-40 ^luraUty cqiinion). SimUarly, wben niling under Tide VU tfaat discrimination against an enqiloyee because fae lacksreligicmsbeUefs isreUgiouscUscriminaticm, die courts did not thereby create a new Tide v n basis of "non-beUevers." SGS e ^ , EECX v. Townley Eng'g & Mfg. Co.. 859 F. 2d. 610, 621 (9di Cir. 1988). These courts sunply ^qiUed existmg Tide VH principles cm race, sex, andreUgiousdiscrimination to tfaese situations. Furtfaer, tfae Siqireme Court was not dissuaded by tfae atisence of tfae word "motfaers" in Titie VH wfaen it decided that dx stamte does not pemut an enqiloyer to have cme hiring poUcy for women widi pre-school chUdren and anodier for men witfa pre-schocd diUdren. See PhiUips v. Maitin-Marietta, 400 U.S. 542, 543-44 (1971) (per curiam). Tbe courtsfaavegone where die principles of Tide VH have directed. Our task is the same. We apply the words of the stamte Congress has charged us witb enforcing. We fixrefore conclude fiiat COnqilainant's aUegaticms of discriminaticm cm tfae basis of sexual orientaticm state a claim of discrimination on die tiasis of sex. We furdier conclude tfaat aUegaticms of discriminaticm on die basis of sexual orientaticm necessarily state a claim of ctiscrimination cm tfae t>asis of sex. An employee could sfaow tfaat tfae sexual orientaticm discrriminaticmfaeor sfae e^qxrienced was sex discrimination because it involved treatment tfaat would not have occurred but for fix individual's sex; txcause it was based on the sex of the perscm(s) die individual asscxiates widi; and/or because it was premised cm the fundamental sex stereotype, norm or e]q[iectaticm that inctividuals sbould be attracted only to diose of tfae opposite sex." Agencies should treat claiins of sexual orientaticm discriminaticm as conqilaints of sex discrimination under Tide VU and process such complaints through the ordinaiy Secticm 1614 piocess. We rec^igiuze tfaat many agerxies also have separate conqilaint processes in place for claims of sexual orientaticm discriminaticm. Agencies may maintain, and employees may stiU utilize, these procedures if diey wisfa. But tfae 1614 process is dx most iqqircqiriate metfaod for resolving dxse claiins. Agendes sfaould make applicants and enqiloyees aware tfaat claiins of sexual orientaticm discriminaticm wiU ordinarily be processed under Secticm 1614 as claims of sex discrimination unless die enqiloyee recpiests that the altemative ccmqilaint process tx used. CONCLUSION Accordingly, we cxmclude that COnqilainam's aUegaticms of discrimination cm d x basis of fais sexual orientaticm state a claim of discriminaticm cm dx tiasis of sex witfain tfae meaning of Tide " Tfaere may be otfaer dxories for establisfauig sexual orientation discriminatiott as sex discrimination, on wfaich we egress no cqiinion. 15 0120133080 v n . Furthermore, we conclude that Complaint's imtial EEO txiimselor cxmtact was timely. We remand tfae Ccmqilainant's claim of ctiscrimination to tfae Agency for furtfaer processing to determiix its vaUdity on tfae merits. ORDER The Agency is ordered to contmue processmg die remanded claims. The Agency sfaaU acknowledge to die Conqilainant tfaat it faas received tfae remanded daims widiin diirty (30) calendar days of tfae date tfais decision tiecomes final. Tfae Agency shaU reissue to Conqilainant a copy of tfae investigative file and also sfaall notify Ccmqilainant of tfae appropriate rigfats widun diirty (3(9) calendar dqrs of tfae date ifais decisicm beccmnes final, unless tfae inatter is otfaerwise resolved prior to fiiat time. If tfae COmplainant recpiests a final decision witfaout a faearing, the Agency shaU issue a final decision on d x merits of fais ctiscrimination clauns widun sixty (6()) dsys of receipt of Complainant's request. A copy of tbe Agency's letter of acknowledgment to Ccmqilainant and a copy of the notice fiiat transmits the investigative fUe and notice of rights must t x sent to the ConqiUance Officer as referenced Ixlow. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Conqiliance with the Commission's corrective acticm is mandatory. Tbe Agency sfaaU subinit its ccmqiUance report vnfiiia fiiirty QO) calci^ar days of ifae completicm of aU ordered corrective acticm. Tfae report sfaaU be submitted to d x ConqiUance Officer, Offlce of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Wasfaington, DC 20013. The Agency's report must ccmtain siqqiorting dcxnimentation, and the Agency must send a copy of aU submissions to tfae Conplainant. If tfae Agency does not comply witfa tfae COmmissicm's order, d x Ccmqilainant may petiticm tfae COmmissicm for enforcement of tfae order. 29 C.F.R. § 1614.503(a). Tfae Conqilainant also faas fix rigfat to file a civU action to enforce ccmqiliaiKe witfa fix Comnussicm's order prior to or following an administrative petition for enforcement S ^ 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, tfae Ccmqilainant faas die rigfat to file a civU acticm on d x underlying complaint in acccndance witfa tfae p a r a g r ^ below entitied "Rigfat to FUe a CivU Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civU action for enforcement or a civU action on t i e underlying conqilaint is subject to d x deadlhx stated in 42 U.S.C. 2000e-16(c) (1994 & Sapp. IV 1999). If die Ccmqilainant files a civil acticm, tix administiative processing of i ^ complaint, inclrating axty petition for enfbrccmcct. wiU be terminascd. S ^ 29 C.F.R. § 1614.409. 16 0120133080 STATEMENT OF RIGHTS - ON APPEAL RECONSn>ERATION (M0610) Tfae Commissicm may, in its discretion, reconsider tfae decision in diis case if tfae COmplainant or die Agency submits a written recpiest ccmtaining aiguments or evicfence wfaicfa tends to estabUsh that: 1. The appeUate decisicm involved a clearly errcmeous interpretation of material fact or law; or 2. Tfae qqxUate decision wiU faave a substantial impact on tfae policies, practices, or operations oftfae Agency. Recjuests to reconsider, with siqqiorting statement or brief, must be fUed witfa the Offlce of Fecleral Operations (OFO) widiin diirty (30) calei^ar dqrs of receqit of this decision or widiin twenty (20) g«lw«far d ^ of receqit of another party's timely recpiest for reconsideraticm. S ^ 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). AU requests and arguments must be sulnnitted to tfae Director, Office of Federal Cqierations, Ecpial Enqiloyment Opportunity Commission, P.O. Box 77960, Wasfaingtcm, DC 2(X)13. In d x atisence of a legible postmark, tfae recpiest to reccmsider sfaaU be deemed timely filed if it is received liy maU witfain five days of the ejqiiration of tfae iqqiUcable filing period. S ^ 29 C.F.R. § 1614.604. Tfae request or oppositicm must also include proof of service cm tfae otfaer party. Failure to file witfain tfae time period wiU result in dismissal of your request for reccmsideration as untimely, unless extenuating circumstances prevented die timely filing of tfae recpiest. Any siqqxnting dcxnunentaticm must l x sutimitted widi your request for reccmsideraticm. Tfae COmmissicm wiU ccmsider recpiests for reconsideraticm filed after tfae deadline only in very limited circumstances. S ^ 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO F n ^ A CJVILACmON (R0610) This is a decisicm requiring the Agency to ccmtinue its administrative processing of your complaint. However, if you instead wish to file a civU action, you have d x right to file such acticm in an iqqinqiriato United States District COurt widiin niaety (90) calendar days from the date tfaat you receive fiiis decisicm. In die alternative, you may fUe a civU acticm after one bundled m d eigfaty (ISO) calendar days of die date you filed ycxir ccmqilaim widi d x Agency, or filed your iqqxal widi the COnunission. If ycm file a avU action, you must nanx as tfae defendant in die conqilaint d x person viiho is d x offlcial Agency head or department head, identifymg tfaat perscm by fais or faer fidl name and official tide. Failure to do so may result in tfae cUsmissal of your case in ccxirt "Ageixy" or "dqiartment" means the naticmal organizaticm, and not die local office, facUity or department in wfaicfa you work. Fiting a dvil acticm win temunate fix adnumstiative procesnog of yoor conqilmnt. 17 0120133080 RIGHT TO REQUEST COUNSEL (Z0610) If you decide to file a civU action, and if you do notfaaveor cannot afford tfae services of an attorney, ycm may recpiest fixim tfae COurt that the COurt appoim an attomey to represent you and that the Court also pennit ycm to fUe tfae action witfaout payment of fees, costs, or otfaer security. S ^ Tide VH of die OvU Rigfats Act of 1964, as amended, 42 U.S.C. § 2000e-5(f) (1) ("Upcm application by tfae ccmqilainant and in such circumstances as the court may deem just, the coan aay sqqioint an attorney for such ccnnplainant and may authorize dx cummiencement of tfae acticm witfaout the payment of fees, costs, or security"); tfae RefaabUitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or draual of tfx recpiest is within fix sole discretion of d x Court. FiUng a request for an attorney with d x COurt does not extend your time in which to fUe a civU action. Both the recpxst and dx civU acticm must lx filed within the time limits as stated in the paragraph above ("Right to FUe a CivU Action"). FOR THE COMMISSION: ;ne B. WUstfn Acting Executive Officer Executive Secretariat If^^oif )ate