The United States Supreme Court declared marriage equality has reached the nation. Justice Kennedy, writing for the Court, mandated all states issue marriage licenses to two people of the same sex and all states recognize a marriage between two people of the same sex when that marriage was lawfully licensed and performed out-of-state. Citing the American Psychological Association, Justice Kennedy suggested sexual orientation is an immutable characteristic, just as race and sex are immutable characteristics.1 While strictly speaking, Obergefell v. Hodges involved marriage, it is presumed by many to be a pivotal decision further changing the landscape for lesbian, gay, bisexual, and transgender (LGBT) individuals and the businesses that employ them. Many consider this landmark decision to be one of the first steps towards full equality for LGBT individuals in areas outside of marriage, including employment, insurance, housing, public accommodations, education, and health care among other things.

On July 13, 2015, the Secretary of Defense Ash Carter announced the Department of Defense is taking steps to allow transgender men and women to serve openly in the United States Armed Forces—ordering a six-month study on the issue with the goal of removing barriers currently preventing transgender people from enlisting.

Mere days before, an Oklahoma federal court judge denied Southeastern Oklahoma State University’s Motion to Dismiss a professor’s complaint under Title VII by subjecting the professor to a hostile work environment based on her “presented gender.”2 The crux of this lawsuit involved the university’s treatment of Dr. Tudor following her transition from male to female. Dr. Tudor alleged that she was: required to use a specific all-genders restroom on a different floor than her, rather than the women’s restroom located on her floor; counseled against wearing short skirts and to take safety precautions against people who are openly hostile towards transgender individuals; and excluded from the university’s health insurance plan. Finding “a transsexual individual [alone] is not within a protected class,” the court clarified Title VII protections will extend “to transsexual employees only if they are discriminated against because they are male or because they are female.”3 Here, the court found the university’s actions occurred because Dr. Tudor was a female, yet the university regarded her as male and its actions were based upon its dislike of her “presented gender.”4

On July 16, 2015, the EEOC found Title VII’s proscription against sex discrimination meant “employers may not rely upon sex-based considerations or take gender into account when making employment decisions,” and this applies equally in “claims brought by lesbian, gay, and bisexual individuals under Title VII.”5 The underlying case involved an employee of the Federal Aviation Administration’s Air Traffic Control Tower at International Airport in Miami, Florida who alleged he was denied a permanent position as a Front Line Manager based on his sexual orientation. The complainant alleged his supervisor made several negative comments about his sexual orientation—for example, when he mentioned attending Mardi Gras with his partner, his supervisor allegedly stated, “We don’t need to hear about that gay stuff.” On other occasions, his supervisor allegedly told him he was a “distraction in the radar room” when he participated in conversations mentioning his male partner.

The EEOC concluded discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. Sexual orientation discrimination is sex discrimination for three reasons:

  1. Because sexual orientation cannot be understood or defined without reference to sex, sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex. The necessary inquiry becomes would a harasser have acted the same if the gender of the victim had been different.
  2. Sexual orientation discrimination constitutes sex discrimination because it is associational discrimination on the basis of sex—i.e. treating an individual differently because he or she is associating with a person of the same sex. The courts and the EEOC have consistently struck down such associational discrimination in proscribing race discrimination, and the EEOC would not limit this proscription to the context of race discrimination.
  3. Sexual orientation discrimination involves discrimination based on gender stereotypes. If an LGBT individual is treated differently because he or she is “insufficiently masculine or feminine” based on appearance, mannerisms, or conduct, this constitutes sex discrimination.

The EEOC found it did not create a new protected class, but rather its interpretation of case law and Commission decisions supported the conclusion sexual orientation discrimination ultimately states a claim of discrimination based on sex. The EEOC charges federal agencies to treat claims of sexual orientation discrimination as complaints of sex discrimination under Title VII and process complaints accordingly. This decision is limited to the employment context.

The EEOC’s decision, coupled with the rolling tide of other victories for LGBT individuals, leaves employers with uncertainty. While federal legislation specifically enumerating sexual orientation or gender identity as protected classes is not in effect, employers will be liable for participating in sexual orientation or gender identity discrimination under the umbrella of sex discrimination in the EEOC’s eyes.6 It is unclear whether the courts will adopt the EEOC’s rationale without legislative action, and in fact, many courts have expressly stated sexual orientation discrimination is not prohibited under Title VII. However, LGBT employees can now turn to the EEOC if they suffer discrimination based on either sexual orientation or gender identity or expression. Now that lesbian and gay employees have the right to marry under Obergefell, the EEOC will disallow employers from taking action against an employee who does so.

These developments only add to the body of existing protections for LGBT employees under state and local law, as well as other federal cases that interpret Title VII as protecting individuals from discrimination based upon gender stereotypes. While the Employment Nondiscrimination Act—the remedial statute proposed to prohibit discrimination in employment on the basis of sexual orientation and gender identity—has gained no traction since the Senate passed it in 2013, it is critical all employers pay close attention to the changing landscape of LGBT protection.