Legislative efforts have failed repeatedly at the federal level to add “sexual orientation” and “gender identity” to the list of protected classifications under anti-discrimination laws. That has not deterred the EEOC in its quest to protect the LGBT community from employment discrimination.

On the heels of the Supreme Court’s historic decision in Obergefell on June 26 legalizing same-sex marriage, the EEOC issued an opinion on July 15 interpreting Title VII’s reference to “sex” as encompassing “sexual orientation.”

In the case of Complainant v. Anthony Fox, Secretary, Department of Transportation (FAA), a supervisory air traffic controller at the Miami International Airport alleged that he was passed-over for promotion because of his sexual orientation. In support of his claim, the male employee, whose identity has not been disclosed, attributed to his supervisor remarks such as, “[you are a] distraction in the radar room,” and “we don’t need to hear about that gay stuff.”

The EEOC had no trouble concluding, almost matter-of-factly, that “sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”

In support of it legal position that “sex” includes “sexual orientation,” the EEOC reasoned as follows:

For example, assume that an employer suspends a lesbian employee for displaying a photo of her female spouse on her desk, but does not suspend a male employee for displaying a photo of his female spouse on his desk. The lesbian employee in that example can allege that her employer took an adverse action against her that the employer would not have taken had she been male. That is a legitimate claim under Title VII that sex was unlawfully taken into account in the adverse employment action.

The EEOC further reasoned that sexual orientation discrimination is a form of unlawful “associational discrimination” (treating one differently because s/he associates with a person of the same sex), and necessarily involves gender stereotyping (the belief that men and women should exhibit “masculine” and “feminine” traits).

The EEOC also takes the position that the term “sex” under Title VII encompasses “gender identity.” In September 2014, the EEOC filed suit against a Lakeland, Florida employer, alleging discrimination against a transgender employee in the process of transitioning from male to female. That lawsuit settled for $150,000 in April 2015.

Here are a few practical take-aways from the EEOC’s decision:

  • Consider revising your anti-harassment/anti-discrimination policies to include reference to “sexual orientation” and “gender identity or expression,” particularly if you employ workers in a state (or county or city) that expressly prohibits discrimination because of sexual orientation and gender identity or expression. In my home-court of Florida, the Florida Civil Rights Act does not expressly prohibit discrimination because of sexual orientation or gender identity or expression, but there is coverage under several county and local ordinances, including Miami-Dade County, Broward County, Palm Beach County, Leon County, Monroe County, Orange County, Volusia County, Hillsborough County, Key West, Gainesville, Tampa, Miami Beach, among others.
  • Train your employees and HR professionals on the scope of prohibited “sex discrimination.” You don’t want your supervisors and HR team to ignore complaints about sexual orientation or gender identity-based harassment or discrimination due to a mistaken belief that it’s not illegal.
  • In an effort to foster an environment of inclusiveness, put an end to water-cooler banter and off-color remarks about sexual orientation and gender identity issues (even if those remarks are about current events such as Caitlyn Jenner’s transformation).