In a sweeping decision, the U.S. Equal Employment Opportunity Commission found that Title VII prohibits sexual orientation-based discrimination. Although the statute does not explicitly include sexual orientation as a protected class, the statute does list “sex,” and the EEOC concluded “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 EEOC admitted the language of Title VII does not specifically extend to sexual orientation: “When an employee raises a claim of sexual orientation discrimination as sex discrimination under Title VII, the question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. It is not. Rather, the question for purposes of Title VII coverage of a sexual orientation claim is the same as any other Title VII case involving allegations of sex discrimination – whether the agency has ‘relied on sex-based considerations” ‘or ‘taken gender into account’ when taking the challenged employment action.” The EEOC then states unequivocally: “a complainant alleging that an agency took his or her sexual orientation into account in an employment action necessarily alleged that the agency his or her sex into account.”

The lengthy opinion extends Title VII protection to sexual orientation claimants on three grounds: (1) sex and sexual orientation are inseparable; (2) sexual orientation claimants are asserting prohibited “associational discrimination;” and (3) sexual orientation discrimination is often based on gender stereotypes, which is also prohibited.

First, sexual orientation is a necessary component of and inseparable from one’s “sex” or “gender,” which are legally protected classes. As an example, the EEOC opines that an employer who suspends a lesbian employee for having a picture of her spouse on her desk would not have done so were the employee male. Thus, sex was unlawfully taken into account in an adverse employment action, in direct violation of the Title VII. That is, employers who discriminate against homosexuals are not discriminating against employees who engage in certain acts, but rather because the employer would not have punished a male employee for the same act, sexual orientation discrimination is actually sex discrimination.

Second, sexual orientation discrimination is prohibited under Title VII because it is associational discrimination on the basis of sex – that is, it when an employer treats an employee differently for associating with a person of a certain sex. The EEOC cited instances where it had previously found discrimination against employees in interracial marriages or interracial friendships to be protected under Title VII; thus homosexual romantic relationships should be treated no differently.

Finally, sexual orientation discrimination is sex discrimination because it is often based on gender stereotypes. The EEOC quotes the U.S. Supreme Court as holding Title VII applies “to the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Thus, to the extent sexual orientation discrimination is premised on the victim being insufficiently “masculine” or “feminine,” the victim should be afforded Title VII protection.

The EEOC admits “Congress may not have envisioned the application of Title VII to these situations” when it passed the Civil Rights Act of 1964. Nonetheless, the EEOC will now enforce Title VII to cover these types of claims. But its enforcement efforts may only go so far. This particular case involved an appeal by a public employee, and it is not binding on any federal court, which may not endorse this view. In fact, it already runs counter to the views of some federal courts. Of course, Congress can always put this issue to rest by amending Title VII, but we don’t see that happening anywhere in the near future.