Earlier this week, the Equal Employment Opportunity Commission (“EEOC”) filed its first two lawsuits ever premised on the theory that sex discrimination under Title VII of the Civil Rights Act of 1964 includes discrimination based on sexual orientation.  Unlike many state anti-discrimination statutes, including those of Massachusetts and Connecticut, Title VII does not explicitly list sexual orientation as a protected class.  In the past, both the EEOC and federal courts have allowed such lawsuits to proceed only where the facts of the case supported a theory of gender stereotyping.  With its recent position that discrimination based on sexual orientation is, in and of itself, a form of sex discrimination, however, the EEOC has removed this limitation.  The question that will have to be answered by the courts in these two lawsuits is whether the EEOC’s interpretation of the term “sex” in Title VII as including sexual orientation is reasonable.  If the courts agree with the EEOC, sexual orientation will become a nationally-protected category for employers covered under Title VII.  Currently, less than half of the states recognize sexual orientation as a protected class with regard to both public and private employees.