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EEOC Files First Suits Challenging Sexual Orientation Discrimination as Sex Discrimination

In a press release dated March 1, 2016, the EEOC announced that it was filing two separate lawsuits against private employers under the theory that individuals who have been subjected to discrimination on the basis of sexual orientation have suffered discrimination on the basis of sex in violation of Title VII of the Civil Rights Act.  These are the first cases that the EEOC has filed against private employers under this theory.  While at least 22 states already bar discrimination on the basis of sexual orientation under state anti-discrimination laws, these cases represent the first time that federal law has been used to challenge discrimination based on sexual orientation. Title VII of the Civil Rights Act of 1964 prohibits discrimination because of sex. Prior to 2015, while recognizing that same-sex sexual harassment was actionable, federal courts uniformly held that Title VII’s prohibitions against discrimination on the basis of sex did not apply to discrimination on the basis of sexual orientation.  However, on July 15, 2015, EEOC, in a federal sector decision, determined that sexual orientation discrimination is, by its very nature, discrimination because of sex. See Baldwin v. Dep’t of Transp., Appeal No. 0120133080 (July 15, 2015). In that case, EEOC explained the reasons why it had decided that 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. No federal court has yet to weigh in on whether Title VII bars discrimination on the basis of sexual orientation following this pronouncement or whether the EEOC, by administrative action, may amend what was previously adjudicated to be the plain meaning of a statute.  We will be closely monitoring these cases as they proceed.  In any event, it is imperative that employers review their employment practices and procedures to ensure that they reflect the current state of the law in light of the EEOC’s recent actions.  

ABOUT GREGORY CURREY

Gregory Currey Gregory Currey is an experienced and efficient litigator who focuses his practice on Labor and Employment Law and Defense Litigation. He represents employers in State and Federal employment litigation, focusing on all aspects of employee relations, including compliance with Title VII, the ADA, FMLA, FLSA, immigration issues involving I-9s, the E-verify program and H-1B visas, ERISA, retiree health benefits and the NLRA. In addition to handling employment litigation, Mr. .Currey represents companies and individuals in general litigation, with extensive experience in construction litigation. In addition to his litigation work, Mr. Currey counsels businesses and organizations to ensure compliance with State and Federal employment laws, reviews and drafts policies for employee handbooks and leads employee and management training programs. You can connect with Offit Kurman via our BlogFacebookTwitterGoogle+YouTube, and LinkedIn pages.  You can also sign up to received Law Matters, Offit Kurman’s monthly newsletter covering a diverse selection of legal and corporate thought leadership content.

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