On December 21, 2012, a Department of Transportation employee filed a complaint with the Equal Employment Opportunity Commission. The plaintiff alleged that he had been discriminated against on the bases of sex and sexual orientation in violation of Title VII. Specifically, the plaintiff alleged ...
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On December 21, 2012, a Department of Transportation employee filed a complaint with the Equal Employment Opportunity Commission. The plaintiff alleged that he had been discriminated against on the bases of sex and sexual orientation in violation of Title VII. Specifically, the plaintiff alleged that his employer, the Department of Transportation, failed to select him for a permanent managerial position position after his temporary appointment to the position expired, and that his supervisor, who had made several negative comments about his sexual orientation, was involved in the selection process for the permanent position.
The Agency issued its Final Agency Decision on July 12, 2013. In its decision, the Agency did not consider the complainant's claim on the merits. Instead it decided that the plaintiff should have contacted an EEO counselor within forty-five days of when he learned his position would not be permanent in October, 2010. The complainant appealed the Agency's decision to the EEOC. The Agency also informed the complainant that it would process his sexual orientation discrimination complaint through its internal procedures and not through the EEO complaint process.
On July 16, 2015, the EEOC issued its decision. The EEOC decided that it was not reasonable for the Agency to argue that the complainant should have known he was being discriminated against when he was appointed for the temporary position because the complainant was not treated disparately until his temporary position was not converted to a permanent position two years later.
The EEOC also decided that the Agency erred in treating the complainant's sexual orientation discrimination claim differently from his sex discrimination claim because the question for Title VII coverage of a sexual orientation claim is the same as any other sex-based discrimination claim, whether the Agency "relied on sex-based considerations" or "took gender into account" when taking the challenged employment action. The EEOC decided that sexual orientation is inherently a "sex-based consideration," so discrimination on the basis of sexual orientation is necessarily discrimination on the basis of sex under Title VII.
The plaintiff's claim of discrimination was remanded to the Agency for consideration on the merits and is currently pending.Katherine Reineck - 03/20/2016