Earlier this month, the Equal Employment Opportunity Commission (EEOC) filed its first two lawsuits against a Pennsylvania employer and a Maryland employer for sexual orientation discrimination. The EEOC’s actions are not too surprising, given its recent decision in July of 2015, in which it held that discrimination against employees based on sexual orientation was illegal sex discrimination under Title VII of the Civil Rights Act.
The EEOC’s decision is seen as controversial by some, as federal courts have historically found that sexual orientation is not a protected class under Title VII (unlike “sex” or gender, which is protected). However, over the years, some courts have offered limited protection to LGBT employees under Title VII—primarily by holding that it is illegal to discriminate against employees for not living up to gender stereotypes. For example, a federal circuit court held that a gay male employee who was harassed by coworkers for being too “effeminate” could proceed with a Title VII claim of sex discrimination. In light of these decisions, and the Supreme Court’s recent decision to legalize same-sex marriage, the EEOC might be hopeful that courts will similarly step in to protect LGBT employees from employment discrimination.
Federal courts are not bound by the EEOC’s interpretation of Title VII and will decide the issue independently. However, until the issue is decided by the courts, employers should be aware that the EEOC is processing charges of sexual orientation discrimination filed by employees (and in rare cases, filing suit against employers on behalf of employees).
About half of the states—including California, Illinois, and New York—already have laws that prohibit private employers from discriminating based on sexual orientation. However, a ruling that sexual orientation is a protected class under Title VII would mean that private employers in all states will be prohibited from discriminating against LGBT employees.