Two lawsuits filed by the EEOC on March 1, 2016, appear to be part of the Commission’s Strategic Enforcement Plan. Priorities of the plan include “Addressing Emerging and Developing Issues” such as “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions.” On a more granular level, the filings can be understood as an outgrowth of the EEOC’s decision in the federal sector case Baldwin v. Dep’t of Transp., Appeal No. 0120133080 (July 15, 2015).
In Baldwin, the EEOC held that Title VII’s prohibition of sex discrimination includes sexual orientation discrimination because “discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. ‘Sexual orientation’ as a concept cannot be defined or understood without reference to sex.”
The EEOC explained that:
An employee could show that the sexual orientation discrimination he or she experienced was sex discrimination because it involved treatment that would not have occurred but for the individual’s sex; because it was based on the sex of the person(s) the individual associates with; and/or because it was premised on the fundamental sex stereotype, norm, or expectation that individuals should be attracted only to those of the opposite sex. [In a footnote, the EEOC noted that “there may be other theories for establishing sexual orientation discrimination as sex discrimination, on which we express no opinion.”] Agencies should treat claims of sexual orientation discrimination as complaints of sex discrimination under Title VII and process such complaints through the ordinary Section 1614 process.
The two filings will allow the EEOC to test the persuasiveness of its current interpretation of Title VII’s prohibition of sex discrimination, but it is unlikely that either action will clarify the ongoing jurisdictional split on this issue in federal courts. While the appellate circuits have thus far agreed that “Title VII does not prohibit harassment or discrimination because of sexual orientation” (Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir., 2005)), recent decisions at the district court level have embraced the EEOC’s interpretation as articulated inBaldwin. (See Videckis v. Pepperdine Univ. 2015 WL 8916764 (C.D. Cal.);Isaacs v. Felder Services, LLC, 2015 WL 6560655 (M.D. Ala.) (agreeing with the EEOC’s position that “claims of sexual orientation–based discrimination are cognizable under Title VII.”)) Moreover, it is not inconceivable that some circuit courts might reverse their positions on this issue; the Ninth Circuit could be a prime candidate for such a reversal given that it has expressly applied heightened scrutiny to equal protection claims involving sexual orientation. (SmithKline Beecham Corp. v. Abbot Laboratories, 740 F.3d 471, 481 (9th Cir. 2014).)
Beyond the ongoing disagreement between federal courts on this issue, these two EEOC lawsuits should not have any effect on sexual orientation discrimination claims premised on state law. Many states have enacted statutory prohibitions on employment discrimination on the basis of sexual orientation. Most plaintiffs in states that have enacted such statutes are unaffected by the gap in Title VII regarding discrimination on the basis of sexual orientation; so long as they meet the applicable procedural requirements, such plaintiffs have a viable remedy under state law.