The Times They Are A Changin’ – EEOC Files Discrimination Lawsuits Based Upon Sexual Orientation

When it comes to employment discrimination, we all know that by its terms, Title VII prohibits discrimination based upon sex, but does not prohibit discrimination based upon sexual orientation.

But times have changed – rapidly.

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Laws generally lag behind changes in society, and government sometimes lags even further behind.  Witness the refusal of this Congress to amend Title VII to explicitly include, among other things, sexual orientation.

It is therefore noteworthy that the EEOC is not lagging — it has just announced that it has “filed its first two sex discrimination cases based on sexual orientation.”

In what truly is a significant development, the EEOC announced that “Title VII of the Civil Rights Act of 1964 prohibits discrimination because of sex. As the federal law enforcement agency charged with interpreting and enforcing Title VII, EEOC has concluded that harassment and other discrimination because of sexual orientation is prohibited sex discrimination (emphasis added).”

The lawsuits themselves are unremarkable in their facts – with the exception that the employment discrimination claimed was sex discrimination based upon sexual orientation against a gay male employee and a lesbian employee. In both suits the employees were subjected to harassment – such as anti-gay epithets, and offensive comments about their sexuality and sex life.

The EEOC’s announcement noted the precursor to these suits – an EEOC decision last year in a federal sector decision, known as Baldwin v. Dep’t of Transp., in which, said the EEOC announcement:

“[The] EEOC explained the reasons why Title VII’s prohibition of sex discrimination includes discrimination because of sexual orientation: (1) sexual orientation discrimination necessarily involves treating workers less favorably because of their sex because sexual orientation as a concept cannot be understood without reference to sex; (2) sexual orientation discrimination is rooted in non-compliance with sex stereotypes and gender norms, and employment decisions based in such stereotypes and norms have long been found to be prohibited sex discrimination under Title VII; and (3) sexual orientation discrimination punishes workers because of their close personal association with members of a particular sex, such as marital and other personal relationships.”

David Lopez, the General Counsel of the EEOC, said that “With the filing of these two suits, EEOC is continuing to solidify its commitment to ensuring that individuals are not discriminated against in workplaces because of their sexual orientation. While some federal courts have begun to recognize this right under Title VII, it is critical that all courts do so.”

The times they sure are a changin’!


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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]