EEOC Files Sexual Orientation Discrimination Lawsuits

March 9, 2016

All employers know that it is illegal to discriminate against potential or existing employees because of their sex. Title VII of the Civil Rights Act of 1964 makes it unlawful for any employer to discriminate against any person because of the person’s race, color, religion, sex or national origin. For many years, the Equal Employment Opportunity Commission (“EEOC”) and the courts did not consider discrimination based on a person’s sexual orientation as discrimination based on sex. Therefore, Title VII protections were not afforded to those who suffered workplace discrimination based on their sexual orientation. However, following numerous legislative acts and court decisions broadening protections to gay, lesbian and transgender individuals, the EEOC is now aggressively enforcing discrimination based on sexual orientation as a form of sex discrimination under Title VII.

Last year the EEOC made it known that despite years of practice to the contrary, it is now interpreting and enforcing Title VII’s prohibition of sex discrimination is forbidding any employment discrimination based on gender identity or sexual orientation. The EEOC made it clear that examples of such discrimination include:

  • Failing to hire an applicant who is transgender;
  • Failing to hire an employee who plans to or has already made a gender transition;
  • Denying an employee access to a restroom corresponding to an employee’s gender identity;
  • Denying an employee promotion based on the employee’s sexual orientation;
  • Harassing an employee because of sexual orientation or gender transition; and
  • Discriminating against or harassing an employee because of sexual orientation or gender identity.

The EEOC acknowledged that while Title VII does not explicitly include sexual orientation or gender identity in its listed protected bases, that its interpretation of the law’s sex discrimination provision is consistent with Supreme Court case law holding that employment actions motivated by gender stereotyping are acts of unlawful sex discrimination. In early March of 2016, the EEOC filed its first ever lawsuits in federal court alleging that two separate companies violated Title VII by subjecting homosexual employees to hostile work environments. In one suit the defendant employer is alleged to have fired a lesbian worker after she had complained of harassment based on her sexual orientation. In another lawsuit, the EEOC alleges that a male employee was forced to quit after the employer refused to address his complaints of pervasive comments about his sexuality.

These lawsuits serve as a reminder that discrimination and/or harassment based on “sex,” as that word is most broadly defined, is a violation of federal law and can subject an employer to significant penalties. Employers should not only have well written policies prohibiting any kind of unlawful discrimination and harassment, but must provide training to their management and lower-level employees to ensure compliance with these laws.

Ethan O’Shea, Esquire

Chair HRMM&L Employment Practices Group

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