Earlier this month, the EEOC filed its first lawsuits against employers alleging sexual orientation discrimination under Title VII, arguing that Title VII’s protections extend to sexual orientation as a form of gender bias. In the lawsuit against Scott Medical Health Center filed in the U.S. District Court for the Western District of Pennsylvania, the EEOC alleges that a gay male employee was subjected to harassment, including anti-gay epithets, because of his sexual orientation. In the suit against Pallet Companies d/b/a/ IFCO Systems filed in the U.S. District Court for the District of Maryland, the EEOC alleges that a supervisor harassed a lesbian employee because of her sexual orientation, including making numerous comments about her sexual orientation and appearance. The EEOC alleges that the employers violated Title VII, which extends protection to workers who are discriminated against on the basis of their sexual orientation. In both cases, the EEOC takes the position that sexual orientation discrimination necessarily entails treating employees less favorably because of their sex, thus triggering Title VII’s protections.

Title VII explicitly prohibits employment discrimination based on race, color, religion, sex and national origin. Until recently, the EEOC declined to pursue sex discrimination claims based on LGBT status. However, the EEOC signaled a shift in its Strategic Enforcement Plan for 2013-2016 that highlighted “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions” as an emerging issue. The agency then saw an uptick in the number of charges that included allegations of sex discrimination related to sexual orientation and/or gender status.  Between 2014 and 2015, the number of these charges increased by 28%. The EEOC’s lawsuits against Scott Medical Health Center and IFCO Systems, following on the heels of agency rulings involving workers in the federal sector,[1] demonstrate the agency’s aggressive focus on changing the law under Title VII.

However, the law is far from settled as to whether Title VII prohibits discrimination based on sexual orientation. Just last week, a federal district court in New York declined to extend Title VII’s protections to sexual orientation discrimination, dismissing a gay plaintiff’s claim for gender discrimination. In Christiansen v. Omnicom Group, the plaintiff brought a Title VII claim against his employer alleging that he was discriminated against because of his sexual orientation. A federal judge granted the defendant’s motion to dismiss, citing Second Circuit precedent dating back to 2000 holding that Title VII “does not proscribe discrimination because of sexual orientation” and as a result, it was “constrained to find that Plaintiff has not stated a cognizable claim for Title VII discrimination.” A copy of the opinion can be found here.

Legal protections for employees based on gender identity and expression continue to expand as well. Last month, California’s Department of Fair Employment and Housing (DFEH) issued guidance to employers on complying with California’s Fair Employment and Housing Act (FEHA) with respect to transgender employees. A copy of the Guidance can be found here. The Guidance makes clear that employers must allow transgender employees access to restroom, shower, locker room and other such facilities that correspond with their gender identity. The Guidance follows a Sacramento Superior Court decision of first impression holding that it was an unlawful employment practice to disallow a transgender man from using the men’s restrooms and locker rooms at his job until he completed sex reassignment surgery. The DFEH also cautions interviewers against asking questions designed to detect a person’s sexual orientation or gender identity (e.g., questions regarding marital status, spouse’s name or relation of household member to one another).

Currently 31 states (plus the District of Columbia and Puerto Rico), along with many municipalities, have laws extending protection from discrimination based on sexual orientation and/or gender identity. In addition, federal contractors are barred from discriminating on the basis of sexual orientation and gender identity under amendments to Executive Order 11246 and implementing regulations from the U.S. Department of Labor (DOL). Given the proliferation of state and local legislation protecting LGBT workers and the enhanced focus on these issues by the EEOC and DOL, employers can expect to see additional litigation and agency investigations of claims of sexual orientation and gender identity discrimination. Employers should consult with counsel and review their policies for compliance with applicable federal, state and local requirements.