Federal commission cites Mass. lawsuit in sexual orientation case

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By Travis Andersen

The federal agency that enforces workplace discrimination regulations ruled that civil rights law protects gays and lesbians, citing a Massachusetts lawsuit filed more than a decade ago, among other cases.

In a ruling dated July 16, the US Equal Employment Opportunity Commission held that an air traffic controller in Miami can pursue a complaint against the Federal Aviation Administration, alleging he was denied a promotion because he is gay.

The ruling held that the controller, who was not named in the copy of the decision made public, is entitled to be heard on his claim under Title VII, which bars discrimination based on factors including race, color, religion, sex, and origin.

“We conclude that sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII,” the ruling stated. “A complainant alleging that an agency took his or her sexual orientation into account in an employment action necessarily alleges that the agency took his or her sex into account.”

The employment commission took no position on the merits of the claim, but ordered that it be sent back to the FAA for “further processing . . . consistent with the ruling.”

The FAA could not be reached for comment. However, in May 2012, Michael P. Huerta, administrator of the FAA, issued an internal order reaffirming the agency’s “commitment to preventing and eliminating discrimination on the basis of race, color, religion, sex (including pregnancy and gender identity) . . . sexual orientation, or prior participation in a protected EEO activity (reprisal or retaliation).”

In the new ruling, the commission cited a number of prior cases as precedent, including a federal lawsuit filed in Boston in 1999. In that case, a postal worker alleged that co-workers subjected him to constant harassment because of his perceived sexual orientation.

In a ruling in 2002, US District Court Judge Nancy Gertner denied the Postal Service’s bid to have the suit thrown out on the grounds that Title VII did not specifically mention sexual orientation.

“In fact, stereotypes about homosexuality are directly related to our stereotypes about the proper roles of men and women,” Gertner wrote in 2002, according to court records.

“The harasser may discriminate against an openly gay co-worker, or a co-worker that he perceives to be gay, whether effeminate or not, because he thinks, ‘real’ men should date women, and not other men.”

Gertner, who has retired from the bench and teaches at Harvard Law School, said Tuesday night that the commission ruling in the Miami case is the first time the agency has explicitly said the Chapter VII provision against sex discrimination applies to sexual orientation.

“It is a big deal,” she said, adding that while the ruling does not affect Massachusetts, which has protections for gays and lesbians, “it would matter nationwide.”

Gay rights advocates have hailed the commission’s decision as an important step in safeguarding civil rights.

Krina Patel, legislative and political affairs director for MassEquality, a statewide gay rights organization, said Tuesday that the group is “hopeful that this landmark ruling will catalyze even more legal protections on the federal level.”