The U.S. Equal Employment Opportunity Commission (EEOC) continues its aggressive push toward expanding the definition of sex discrimination under Title VII to include discrimination on the basis of sexual orientation. While 22 states, including Connecticut, New York, and New Jersey, have already added sexual orientation to their workplace non-discrimination statutes, Congress has failed to pass similar legislation. As a means of side-stepping this gap in the legislation, gay and lesbian employees have argued that discrimination on the basis of sexual orientation should be covered under Title VII’s prohibition on discrimination based on sex. While the Supreme Court has yet to decide this issue, the EEOC remains on the forefront; to that end, its Strategic Enforcement Plan for 2013-2016 includes seeking coverage of LGBT employees under Title VII’s prohibition on sex discrimination. In an article published on its website, entitled “What You Should Know About the EEOC and the Enforcement Protections for LGBT Workers,” the EEOC states:
While Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity in its list of protected bases, the Commission, consistent with case law from the Supreme Court and other courts, interprets the statute’s sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity.
This week, the EEOC took it one step further by filing two suits against employers in Pennsylvania and Maryland federal courts that make this very argument. The EEOC’s decision to bring these two actions reaffirms its agenda to re-shape federal law.
While courts will struggle over the next few years to determine whether to follow the EEOC’s lead, Congress may also weigh in on this issue, especially given that we are in the midst of a presidential election year. As the Title VII landscape continues to evolve, employers should review their anti-discrimination policies to determine whether updates may be necessary and educate their workforce on this rapidly changing area of the law.
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