On March 1st, the Equal Employment Opportunity Commission (“EEOC”) announced that it had filed two separate lawsuits alleging employment discrimination based on sexual orientation.  For the first time in its own lawsuit, the EEOC contends that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination because of an employee’s sexual orientation.  If the federal courts agree, their rulings will add to the growing number of federal courts which have held that sexual orientation discrimination is prohibited under Title VII.

The EEOC filed a lawsuit against Scott Medical Health Center in the Western District of Pennsylvania, alleging that a gay male employee was harassed because of his sexual orientation, which included the use of anti-gay slurs and offensive comments by a manager. When the employee complained, the employee was told that the manager was "just doing his job." After weeks of enduring the manager’s comments, the employee quit. 

In a separate lawsuit against IFCO Systems filed in the District of Maryland, the EEOC alleged that a lesbian employee was harassed by a supervisor who made numerous comments to her regarding her sexual orientation and appearance, such as "I want to turn you back into a woman" and "You would look good in a dress."  At one point, the supervisor blew the employee a kiss and made lewd gestures with his tongue.  The employee complained to management and called the employee hotline to report the harassment.  Instead of addressing the complaint, the company fired the employee a few days later.

As we noted last summer, the EEOC has already ruled in an administrative setting that discrimination based on sexual orientation is discrimination based on sex and prohibited by Title VII.  In Baldwin v. Dep't of Transp., the EEOC held that nothing in Title VII excludes gay and lesbian employees from Title VII’s protections.  According to the EEOC, discrimination based on sexual orientation is necessarily “based on” sex, because orientation “as a concept cannot be defined or understood without reference to sex.”  Additionally, the EEOC maintains that sexual orientation discrimination constitutes unlawful “sex stereotyping”—Title VII prohibits an employer from taking adverse employment actions based on expectations of how a woman or man should act. 

While these are the first two lawsuits filed by the EEOC, they are probably not the last.  The EEOC has made it clear that addressing coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions is one of its national priorities, identified by the EEOC's Strategic Enforcement Plan.  Several federal district courts have already held that Title VII prohibits discrimination based on sexual orientation.  More are likely to follow because courts often defer to the EEOC’s interpretation of Title VII.   The Illinois Human Rights Act already prohibits Illinois employers from discriminating against employees based on sexual orientation and gender identity.  Employers should review their policies and develop best practices to ensure a welcoming workplace and avoid costly litigation.