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For the first time ever, the Equal Employment Opportunity Commission has filed two lawsuits over sexual orientation discrimination.
Both suits are brought under Title VII of the Civil Rights Act, which does not explicitly prohibit employment discrimination on the basis of sexual orientation. Rather, the suits rely on the EEOC's relatively new interpretation that Title VII's prohibition on sex-based discrimination also covers anti-LGBT bias.
An Evolving Understanding of Title VII
For decades, there has been no federal prohibition against anti-gay and lesbian discrimination in the workplace. For more than 50 years since its passage in 1964, Title VII of the Civil Rights Act was understood to prohibit only discrimination based on race, sex, national origin, color or religion.
Despite early attempts by LGBT rights activists, courts steadfastly refused to extend Title VII's protections to sexual minorities. Courts reasoned that sexual orientation discrimination was excluded from "sex" in Title VII since anti-gay discrimination was "gender neutral," impacting both gay men and women alike.
That bright line began to fade in recent years however, largely thanks to inroads made by transgender litigants. In 2012, the EEOC ruled that intentional discrimination against transgender workers because of their gender identity is discrimination based on sex, violating Title VII.
The logic now was that anti-trans discrimination was discrimination based on gender stereotypes as prohibited in Price Waterhouse v. Hopkins, the idea that someone must "walk more femininely, talk more femininely, dress more femininely."
By 2015, the EEOC had extended that to "love more femininely" as well. According to the EEOC, Title VII's "sex" now covered "sexual orientation" for three reasons. First, like transgender status, "sexual orientation as a concept cannot be understood without reference to sex." Similarly, anti-LGBT discrimination stems from "non-compliance with sex stereotypes and gender norms" which Title VII prohibits. Finally, sexual orientation discrimination is based on a worker's "close personal association with members of a particular sex, such as marital and other personal relationship."
What Matters for In House Counsel
For in-house counsel, the details of the two cases are less important than the Commission's legal stance. Both involved run-of-the-mill anti-gay discrimination: slurs, offensive comments, and a failure of management to respond.
Several courts have ruled in favor of the EEOC's interpretation of Title VII regarding trans people, but this will be the first time the EEOC's sexual orientation interpretation is tested in federal court. Keep your eyes peeled and your anti-discrimination policies up to date.