## Facts

- David Baldwin, a gay man, worked for the Federal Aviation Administration (FAA) as a temporary Front Line Manager/Supervisory Air Traffic Control Specialist at the Miami facility.
- The FAA announced a vacancy for a permanent Front Line Manager position in June 2012.
- Baldwin did not submit a formal application, believing temporary Front Line Managers would be automatically considered and that management knew of his interest and qualifications.
- Baldwin learned on July 26, 2012 that he was not selected.
- Baldwin alleged the nonselection was based on sex discrimination tied to his sexual orientation and relied on alleged negative comments by a supervisor involved in the selection process about his being gay.
- Baldwin contacted an EEO counselor on August 28, 2012 and later filed a formal EEO complaint on December 21, 2012 alleging sex discrimination and reprisal.
- The agency issued a final decision dismissing the complaint as untimely and indicating that sexual-orientation discrimination was not cognizable under Title VII.

## Issues

1. Whether Baldwin timely initiated contact with an EEO counselor within the federal-sector 45-day deadline following the alleged discriminatory nonselection.
2. Whether an allegation of discrimination based on sexual orientation states a claim of discrimination “because of sex” under Title VII within the EEOC’s federal-sector jurisdiction.

## Decision

- The EEOC reversed the agency’s dismissal and remanded for further processing.
- The EEOC held Baldwin’s August 28, 2012 counselor contact was timely as to the July 26, 2012 nonselection.
- The EEOC held sexual-orientation discrimination is actionable under Title VII as discrimination because of sex.
- The EEOC expressly declined to decide whether discrimination actually occurred, leaving the merits for determination on remand.

## Legal Principles

- For federal employees, counselor contact is timely if initiated within 45 days of the alleged discriminatory act or the effective date of a personnel action.
- A claim of discrimination based on sexual orientation constitutes sex discrimination under Title VII.
- Sexual-orientation discrimination may be analyzed as sex discrimination because it:
  - necessarily involves sex-based differential treatment (a but-for comparison based on the employee’s sex),
  - can reflect impermissible sex stereotyping, and
  - can constitute associational discrimination based on the sex of the employee’s partner or associates.

## Conclusion

The EEOC held that sexual-orientation discrimination falls within Title VII’s prohibition on sex discrimination and that Baldwin’s complaint was timely, requiring the agency to process the case on the merits rather than dismiss it on procedural or coverage grounds.


Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641 (E.E.O.C. July 15, 2015)