On February 3, 2015, the EEOC’s Director of the Office of Field Programs issued a memorandum to the agency’s district directors regarding the handling of LGBT-related discrimination claims. Although Title VII does not explicitly prohibit discrimination on the basis of an employee’s identification as gay, lesbian, bisexual or transgender, the memorandum states that the EEOC will accept charges filed alleging discrimination on these bases and consider whether they should be investigated as claims of sex discrimination. This is consistent with EEOC’s 2012 Strategic Enforcement Plan, which designated “coverage of lesbian, gay, bisexual, and transgender individuals under Title VII’s sex discrimination provisions” as a significant enforcement priority.

With respect to complaints of discrimination on the basis of transgendered status or gender-identity related discrimination, the memo instructs EEOC field offices to treat such complaints as potential claims of sex discrimination and investigate accordingly. The memo outlines a number of federal decisions where disparage treatment of transgender individuals who did not conform to gender stereotypes was addressed as potential sex discrimination under Title VII and in which the EEOC has filed supporting amicus briefs.

In addition, the memo states that individuals who believe they have been discriminated against because of their sexual orientation should be counseled that they have a right to file a charge with the EEOC, and their charges also should be investigated as potential claims of sex discrimination. The EEOC has filed an amicus brief in one Seventh Circuit case, setting forth its position that individual discrimination based on an individual’s sexual orientation can be presumed to be grounded in sex-based norms, preferences, expectations, or stereotypes and thus violate Title VII’s prohibition on discrimination based on sex. It also opined in a Fifth Circuit case its view that the use of epithets associated with sexual orientation constitutes evidence of discrimination on the basis of sex. The memo further sets forth the EEOC’s position that employee complaints about sexual orientation discrimination can constitute protected activity for purposes of a retaliation claim, if the employee has an objectively reasonable (even if ultimately erroneous) belief that Title VII prohibits sexual orientation discrimination.

In addition to reiterating the agency’s stance on LGBT discrimination claims, the memo asks district directors to report all charges raising such issues to the EEOC’s headquarters for purposes of tracking claim processing and outcomes.

Employers should be mindful when handling internal complaints of sexual orientation or gender identity discrimination or harassment, and when responding to charges of discrimination, that the EEOC views such claims as potential sex discrimination issues and respond accordingly, rather than dismissing them as not covered by Title VII. Employers should also be aware of state and municipal ordinances which may explicitly prevent sexual orientation and/or gender identity discrimination and update their policies and training accordingly.