In this recent post, I discussed the Equal Employment Opportunity Commission’s (EEOC) aggressive prosecution of gender identity discrimination in employment on the basis that such conduct is prohibited sex discrimination under Title VII of the 1964 Civil Rights Act. The EEOC wasn’t done there. In a 3-2 vote, the EEOC recently concluded that Title VII forbids, and has always forbid, sexual orientation discrimination on the job as well because it too is a form “sex” discrimination.
Just as Title VII does not refer to gender identity or transgender status as being a protected class, neither does it refer to “sexual orientation.” For that reason, many courts have held that workplace discrimination based on sexual orientation is not prohibited by Title VII. The EEOC acknowledged that, stating that “the question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. It is not”
Rather, the EEOC reasoned, “the question for purposes of Title VII coverage of a sexual orientation claim is the same as any other Title VII case involving allegations of sex discrimination” — whether the employer “has ‘relied on sex-based considerations’ or ‘take(n) gender into account’ when taking the challenged employment action.”
The EEOC concluded that “sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”
The EEOC’s ruling, while persuasive authority, is not binding on federal courts. But companies who take adverse employment actions based on an employee’s sexual orientation are on notice that the EEOC could soon be knocking at their door.