EEOC Declares that Discrimination on the Basis of Sexual Orientation is Prohibited under Title VII

By Eleanor J. Lipsky, Esq.
elipsky@pashmanstein.com

Recently, the United States Equal Employment Opportunity Commission (“EEOC”) officially held that Title VII’s protections against sexual discrimination also encompass discrimination on the basis of sexual orientation. [1]  This ruling is an important update because it significantly expands the scope of a 2012 decision, where the EEOC held that discrimination against a transgender individual was discrimination because of sex and was therefore prohibited under Title VII.[2]    The EEOC now takes the broader position that discrimination against an individual because of that person’s sexual orientation is a violation of Title VII as well.   The Commission will accept and investigate charges alleging sexual orientation discrimination in employment.   The EEOC has listed protection of LGBT employees as one of its target priorities for 2013 through 2016.

In Baldwin v. Foxx, the EEOC stated that sexual orientation discrimination is inseparable from sexual discrimination because it is premised on “sex-based preferences, assumptions, expectations, stereotypes, or norms.”  Further, sexual orientation, as a concept, “cannot be defined or understood without reference to sex.”   The EEOC reasoned that, “[i]t follows, then, that sexual orientation is inseparable from and inescapably linked to sex and, therefore, that allegations of sexual orientation discrimination involve sex-based considerations.”

Although this decision is not binding precedent in federal courts and it is not certain whether courts will ultimately agree with the EEOC’s position, it is likely to be considered persuasive authority.   In addition, congressional action is not required to implement the EEOC’s decision because the holding is based on extending an already existing protected Title VII class.  Litigation relying on this EEOC decision will certainly take place in the future.  In light of these legal developments, employers are advised to consider their internal anti-discrimination policies with respect to gender identity and sexual orientation discrimination.

[1] See Baldwin v. Foxx, EEOC Appeal No. 0120133080 (July 15, 2015), at http://www.eeoc.gov/decisions/0120133080.pdf for the full EEOC decision.

[2] See Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012).