The EEOC has been pursuing equal protection based on sexual orientation for years, and recent moves by the agency prove their position is more than just talk. In December 2012, the EEOC approved a Strategic Enforcement Plan identifying “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions” as an agency priority. Then on July 15, 2015, after 3 years of more-or-less radio silence on the issue, the EEOC decided Baldwin v. Department of Transportation [PDF].
The EEOC’s position stated in Baldwin could not have been clearer: “Indeed, we conclude that sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” The Commission continued, concluding that “sexual orientation is inseparable from and inescapably linked to sex and, therefore, that allegations of sexual orientation discrimination involve sex-based considerations.”
With the EEOC’s stance firmly established, their next logical step in enforcing their position was to file a lawsuit based on sexual orientation discrimination under Title VII. Well, they took that step on March 1, 2016…twice. The Commission issued a press release announcing two separate lawsuits had been filed alleging sex discrimination based on sexual orientation; one in the Western District of Pennsylvania, the other in the District of Maryland. EEOC’s General Counsel David Lopez suggested the move solidifies the EEOC’s position on discrimination in the workplace, and stated “[w]hile some federal courts have begun to recognize this right under Title VII, it is critical that all courts do so.”
The EEOC is not alone in the push for equality based on sexual orientation. Numerous states have passed laws banning discrimination in the workplace based on sexual orientation and/or gender identity. Similarly, in December 2015, the U.S. District Court for the Central District of California found that Title IX is broad enough to protect against sexual orientation discrimination in certain educational institutions.
Discrimination is not yet a thing of the past, but the legal trend protecting against sexual orientation discrimination is undeniable. Employers will be best suited by getting ahead of the curve, communicating clear anti-discriminatory policies with staff and managers, and promoting tolerance of all people across all levels of their organization.