In a 3-2 decision published on Thursday, July 16, 2015, the U.S. Equal Employment Opportunity Commission (“EEOC”) concluded that intentional discrimination against an employee based on their sexual orientation is sex discrimination- an act strictly prohibited under Title VII of the Civil Rights Act of 1964. “Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms,” the EEOC said. As a result, agencies are now expected to treat claims involving discrimination on the basis of sexual orientation as a claim of sex discrimination under Title VII.
Thursday’s opinion marks yet another significant decision by the EEOC, which in recent years has expanded (or clarified) the extent to which Title VII protects against various forms of workplace discrimination involving sexual orientation or gender identity. As you may recall in 2012, the EEOC in Macy v. Holder found that intentional discrimination against transgender individuals was a form of sex discrimination, and thus actionable under Title VII. Since Macy, the EEOC has been quietly processing a steady number of claims alleging discrimination based on sexual orientation from private and public sector employees. The latest ruling provides clear, authoritative guidance on how to process such claims going forth.
So what does this mean for private employers? For employers who are subject to state or local law prohibiting sexual orientation discrimination or who already have established internal policies prohibiting sexual orientation discrimination, the EEOC’s ruling will have little impact on personnel practices. More than twenty jurisdictions, including Oregon, Washington, California, Minnesota, Utah, and the District of Columbia, already prohibit sexual orientation discrimination. However, Thursday’s ruling may open up employers in such states to both state and federal sexual orientation discrimination claims. For employers across the country, the EEOC’s latest ruling is indicative of how the prohibition of sex-discrimination continues to expand under Title VII, and provide new potential protections in those jurisdictions that currently do not have such state or local prohibitions.