Yesterday, the Equal Employment Opportunity Commission (“EEOC”) ruled in a 3-2 vote that Title VII of the 1964 Civil Rights Act (“Title VII”), as written, forbids sexual orientation discrimination. This groundbreaking decision effectively declares that under existing federal law, sexual discrimination includes any actions that are “sex-based” or “take gender into account,” including those based on sexual orientation.

The EEOC’s interpretation of Title VII, if adopted by the Supreme Court, bypasses the need for an act of Congress to grant discrimination protection to gay and lesbian employees. While only the Supreme Court may issue a definitive ruling on Title VII’s interpretation, federal courts generally give significant deference to EEOC decisions. Also, the EEOC’s decision is binding on all federal agencies and departments, including all 53 EEOC field offices across the country. As of this week’s decision, employees in any state may now file charges with the EEOC alleging discrimination on the basis of sexual orientation.

The EEOC’s seeming expansion of Title VII protections is not entirely unexpected. The EEOC previously ruled in 2012 that discrimination on the basis of gender identity constitutes sex discrimination because the animus is based on “gender non-conformity.” Following similar logic, the EEOC explained in its decision this week that sexual orientation discrimination necessarily takes into account an individual’s sex and is therefore prohibited by Title VII just as any other action that treats male and female employees differently.

Takeaway For Employers

Employers should not wait for a Supreme Court decision before reviewing existing policies and considering the impact of the EEOC’s interpretation of Title VII. The EEOC has the authority not only to investigate charges by employees, but also to file lawsuits against employers on behalf of those employees. Accordingly, employers should act immediately to reassess their existing anti-discrimination policies and consider potential risk in light of the EEOC’s ruling.