On Tuesday, the Equal Employment Opportunity Commission announced that it has filed suit in federal district court in Pennsylvania and Maryland, alleging that discrimination and harassment on the basis of sexual orientation violate Title VII of the Civil Rights Act of 1964. The lawsuits claim that such discrimination is an inherent form of sex discrimination made unlawful under that law. In a press release, the EEOC said, “sexual orientation as a concept cannot be defined or understood without reference to sex. A man is referred to as ‘gay’ if he is physically and/or emotionally attracted to other men. A woman is referred to as ‘lesbian’ if she is physically and/or emotionally attracted to other women.”
No federal appeals court has ever recognized sexual orientation discrimination as directly prohibited under Title VII. In recent years, a number of federal courts have accepted a sexual stereotyping argument, concluding that LGBT employees are protected against sex discrimination in the form of employers’ requiring that they adhere to gender norms. The EEOC’s lawsuits do not claim sexual stereotyping, and make the direct argument that sexual orientation discrimination is sex bias under the law.
The EEOC already reached this conclusion last year in a case involving a federal employee, where the Commission served as the adjudicator. The EEOC is clearly pursuing these private sector lawsuits as test cases, filed for the purpose of establishing legal precedent. If successful, this effort will directly impact the majority of states that have not adopted laws that protect employees from discrimination and harassment on the basis of sexual orientation. The litigation and inevitable appeals of the lower court decisions will likely take several years to conclude.