In a press release dated March 1, 2016, the EEOC announced that it was filing two separate lawsuits against private employers under the theory that individuals who have been subjected to discrimination on the basis of sexual orientation have suffered discrimination on the basis of sex in violation of Title VII of the Civil Rights Act.  These are the first cases that the EEOC has filed against private employers under this theory.  While at least 22 states already bar discrimination on the basis of sexual orientation under state anti-discrimination laws, these cases represent the first time that federal law has been used to challenge discrimination based on sexual orientation.

Title VII of the Civil Rights Act of 1964 prohibits discrimination because of sex. Prior to 2015, while recognizing that same-sex sexual harassment was actionable, federal courts uniformly held that Title VII’s prohibitions against discrimination on the basis of sex did not apply to discrimination on the basis of sexual orientation.  However, on July 15, 2015, EEOC, in a federal sector decision, determined that sexual orientation discrimination is, by its very nature, discrimination because of sex. See Baldwin v. Dep’t of Transp., Appeal No. 0120133080 (July 15, 2015). In that case, EEOC explained the reasons why it had decided that Title VII’s prohibition of sex discrimination includes discrimination because of sexual orientation: (1) sexual orientation discrimination necessarily involves treating workers less favorably because of their sex because sexual orientation as a concept cannot be understood without reference to sex; (2) sexual orientation discrimination is rooted in non-compliance with sex stereotypes and gender norms, and employment decisions based in such stereotypes and norms have long been found to be prohibited sex discrimination under Title VII; and (3) sexual orientation discrimination punishes workers because of their close personal association with members of a particular sex, such as marital and other personal relationships.

No federal court has yet to weigh in on whether Title VII bars discrimination on the basis of sexual orientation following this pronouncement or whether the EEOC, by administrative action, may amend what was previously adjudicated to be the plain meaning of a statute.  We will be closely monitoring these cases as they proceed.  In any event, it is imperative that employers review their employment practices and procedures to ensure that they reflect the current state of the law in light of the EEOC’s recent actions.