Efforts have been made for several years to amend Title VII to prohibit discrimination based upon sexual orientation. However, apparently the EEOC believes that sex discrimination under Title VII includes sexual orientation, thereby negating the need for the legislative initiative it has supported for the past twenty years.

The case of Complainant v. Foxx was a federal sector employment discrimination case decided by the EEOC (which has judicial authority over complaints of employment discrimination against federal agencies) on July 16, 2015. The case involved a male traffic controller who alleged that the Department of Transportation did not promote him because of his sexual orientation. In a three-to-two vote, the EEOC ruled that “sexual orientation discrimination is sex discrimination [under Title VII] because it necessarily entails treating an employee less favorably because of the employee’s sex.” The EEOC ruled it was not bound by the categories explicitly listed in Title VII, but that it would find sex discrimination whenever an employer relied on sex-based considerations or took gender into account.

Although this case involved a federal sector employee, we expect the Commission to apply the same interpretation to private sector charges effective immediately. Commissioner Chai Feldblum confirmed this is an interview with the Washington Blade, where she stated, “The ruling is as significant as people are saying it is. The Commission’s decision that sexual orientation discrimination is always sex discrimination under Title VII now applies across all of the Commission activities, including charges brought to us by employees and applicants who work in the private sector or for state or local governments.” (emphasis added).

Though we think the EEOC has overstepped its authority, we doubt the Foxx decision will greatly expand the number of viable sexual orientation claims. Sexual orientation discrimination has long been a valid and viable claim under a sex stereotyping theory. Based on Supreme Court precedent, a woman or man may proceed with a claim of sex discrimination where she or he is treated differently because she or he does not meet an employer’s stereotypes of how a woman or man should behave or dress. Thus, sex stereotyping and gender identity bias are and have been recognized forms of sex discrimination under Title VII.

What do we foresee as the effect of this decision? We expect that sexual orientation discrimination charges will be filed as a form of sex discrimination, without relying on sex stereotyping theory. An increase in the number of such charges—especially in  states  without  separate sexual orientation anti-discrimination laws—seems likely. (Turn to Jerry Rose’s article to see the EEOC Charge statistics available on sexual orientation). The EEOC will not be satisfied with employer responses citing years of precedent confirming that Title VII does not actually prohibit discrimination based on sexual orientation. In essence, the EEOC has moved to change the law in this regard where Congress has not done so.