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Developments at the EEOC: Title VII Covers Sexual Orientation Slurs

Developments at the EEOC: On August 13, 2013, the Equal Employment Opportunity Commission (EEOC), Office of Federal Operations (OFO) issued an important decision in Couch v. Department of Energy, EEOC Appeal No. 0120131136.  This decision extends a major push by the EEOC to expand the coverage of federal discrimination statutes into the area of discrimination based on employees' sexual orientation.

Currently, the EEOC has no direct jurisdiction over cases of discrimination based purely on bias against an employee's sexual orientation as such.  However, a recent line of OFO decisions has progressively expanded the scope of accepted sex discrimination claims where the employee alleges discrimination against them for failure to comport with gender stereotypes.  Couch represents the latest step in this line of cases.

Mr. Couch was subjected to slurs derogatory to homosexuals, among other acts of harassment.  Mr. Couch filed a discrimination complaint, citing these slurs and accusing the agency of discrimination on several bases, including "perceived sexual orientation."  OFO found for the first time that these slurs constituted a form of "sex-based epithets" which falls within the scope of Title VII as a form of 'gender stereotyping' sex discrimination.  OFO also found that the basis of "perceived sexual orientation" to be a form of 'gender stereotyping' sex discrimination within EEOC jurisdiction.  OFO decisions are binding in all cases with the EEOC's federal sector adjudicative process, and so the effects of Couch extend protection to a broader group of federal employees suffering discrimination tied to their sexual orientation. 

If you are a federal employee or applicant for federal employment and believe that you have suffered unequal treatment on the basis of your sex or sexual orientation, please contact the law firm of Passman & Kaplan, P.C. to request a consultation.

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