On March 1, the EEOC filed its first two lawsuits alleging that discrimination based on sexual orientation violates Title VII as a form of sex discrimination.   Those two cases, against Scott Medical Health Center on behalf of a gay male employee and against IFCO Systems on behalf of a lesbian employee, are the latest actions by the EEOC staking out its position that sexual orientation discrimination is a form of sex discrimination.   As we have covered in the past in this blog, the EEOC has recently taken the view that although Title VII does not mention sexual orientation explicitly, sexual orientation discrimination violates Title VII’s prohibition against sex discrimination because such discrimination punishes workers based on their close personal and romantic relations with members of a particular sex, and may also be rooted in non-compliance with sex and gender stereotypes which have long been prohibited under Title VII.

By filing these two new lawsuits in federal court, the EEOC intends to “solidify its commitment to ensuring that individuals are not discriminated against in workplaces because of their sexual orientation.”  Some federal courts have already recognized that sexual orientation discrimination is covered under Title VII, and the EEOC believed “it is critical that all courts do so.”  We expect this issue to continue to gain traction in the courts going forward and it is vital that employers stay up to date on these fast paced changes in federal law.  The EEOC has published guidance for employers on this area, which you can find here.

As we previously noted, putting aside Title VII, many states and localities have explicit prohibitions on sexual orientation discrimination and employers should seriously consider adopting their own policies.  Employers are also well advised to train their employees on sexual orientation and gender identity non-discrimination policies.  If you have questions about the EEOC’s recent lawsuits or need assistance drafting company policies or training employees, contact an employment attorney.