Does Title VII Cover Sexual Orientation Discrimination?

The EEOC is getting serious about sexual orientation discrimination: in the two lawsuits filed earlier this month, the EEOC argues—for the first time in court—that Title VII’s protections against gender bias extend to sexual orientation as well, protecting lesbian, gay and bisexual private employees.

In two separate suits—one in the Western District of Pennsylvania, the other in the District of Maryland—the EEOC is accusing employers of discriminating against employees based on their sexual orientation, in violation of Title VII of the Civil Rights Act of 1964. These two lawsuits will likely lead to a federal circuit court decision on whether Title VII covers sexual orientation discrimination outside of the federal sector.

EEOC General Counsel David Lopez said in a press release that

“[w]ith the filing of these two suits, the EEOC is continuing to solidify its commitment to ensuring that individuals are not discriminated against in workplaces because of their sexual orientation. While some federal courts have begun to recognize this right under Title VII, it is critical that all courts do so.”

In Scott, the EEOC claims that a gay male employee was subjected to harassment because of his sexual orientation when his supervisor made “highly offensive comments about his sexuality and sex life,” and repeatedly used anti-gay slurs, such as “fag” and “faggot. When the employee reported the manager’s behavior to the clinic’s president, the clinic president allegedly refused to take any action to stop the action. The employee later resigned, claiming that he could no longer endure further harassment.

In the second suit against Pallet Companies, the EEOC claims that a lesbian employee was harassed because of her sexual orientation. The supervisor allegedly repeatedly made comments such as “Are you a girl or a man?” and “You don’t have any breasts.” The supervisor also allegedly “quoted biblical passages stating that a man should be with a woman and not a woman with a woman.” After the employee reported the supervisor’s behavior to management and the employee hotline, she was allegedly fired shortly thereafter.

The EEOC has also been filing amicus briefs in private cases urging the courts to accept this argument, most recently in Burrows v. The College of Central Florida and Evans v. Georgia Regional Hospital, both in the 11th Circuit.

These lawsuits do not come as a surprise: the EEOC has been pursuing equal protection based on sexual orientation for years. And more recent moves by the agency prove their position is more than just talk.

Back in December 2012, the EEOC identified “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions” as an agency priority.

Then, in July 2015, the agency held in the federal sector case, Baldwin v. Dep’t of Transp., that sexual orientation discrimination is discrimination “because of sex” and thus prohibited. 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.”

The agency’s hardline stance thus firmly established, the tea leaves were clear that this position would soon reach beyond the federal sector. And that day has come with these lawsuits.

With a federal circuit court decision on this issue imminent, employers are strongly advised to review their policies and procedures to ensure that discrimination and harassment on the basis of sexual orientation is properly addressed in the workplace.