On July 15, 2015, the U.S. Equal Employment Opportunity Commission (“EEOC”) ruled that employees or applicants for employment are protected from discrimination based on sexual orientation under Title VII of the 1964 Civil Rights Act. Although sexual orientation discrimination is not explicitly included in Title VII, the EEOC ruled to classify allegations of discrimination based on sexual orientation as claims of sex discrimination, which is specifically listed in Title VII.

In its recent ruling, the EEOC concluded that sexual orientation is inherently a sex-based consideration. The commission found that sexual orientation discrimination is also sex discrimination because it is “associational discrimination on the basis of sex,” meaning the agency in question took the employees sex into account by taking discriminatory action(s) because the employee associated with a person of the same sex. The EEOC further argued that because sexual orientation discrimination involves discrimination based on gender stereotypes, it is considered sex discrimination.

As a result of the EEOC’s ruling, allegations of sexual orientation discrimination are considered claims of sex discrimination under Title VII. Thus, the commission should ask the same questions in a case of alleged sexual orientation discrimination under Title VII as it asks in cases of alleged sex discrimination, that is:

  1. Whether the employer, when taking the employment action in question, “relied on sex-based considerations;” or
  2. Whether the employer, when taking the employment action in question, “took gender into account.”

Takeaways for employers

Firm senior partner Wendy Bryant Becker represents employers in all phases of employment law. In particular, her practice includes the litigation of employment discrimination and wrongful discharge cases, representation of employers before the EEOC, state and local Human Rights Commissions, and general counseling to employers on hiring, firing, wage-hour and other day-to-day employment matters.

“Although the EEOC’s opinions do not have the force of law for private employers, its opinions are viewed as persuasive by judges,” said Becker, when asked about the potential impact for employers. “Thus, private employers nationwide are now well-advised to regard Title VII as providing the same protections to LGBT employees as it has always provided to employees based on race, sex, color, religion and national origin.”

Becker also explains that employers in Kentucky, who often must defend sex discrimination claims brought pursuant to the Kentucky Civil Rights Act (the “KCRA”) rather than Title VII, should be watching closely to see whether the courts construing the KCRA will adopt the EEOC’s reasoning and extend that Act’s reach in the same manner.

She reminds employers that under Title VII, the ADA, GINA, and the ADEA, it is illegal to discriminate in any aspect of employment, including:

  • Hiring and firing;
  • Compensation, assignment, or classification of employees;
  • Transfer, promotion, layoff, or recall;
  • Job advertisements;
  • Recruitment;
  • Testing;
  • Use of company facilities;
  • Training and apprenticeship programs;
  • Fringe benefits;
  • Pay, retirement plans, and disability leave; or
  • Other terms and conditions of employment.