Federal courts will weigh the commission’s theory that Title VII applies to sexual orientation-based discrimination and harassment
By Doug Chartier
LAW WEEK COLORADO
Federal courts have long interpreted that the Civil Rights Act of 1964 does not protect employees against discrimination or harassment based on sexual orientation. But the U.S. Equal Employment Opportunity Commission is challenging that tradition in two new, historic lawsuits.
The EEOC has filed its first complaints in federal court alleging discrimination by employers based on sexual orientation. The separate lawsuits, which the commission announced March 1, interpret sexual orientation discrimination as sex discrimination, the latter being expressly prohibited by Title VII of the Civil Rights Act.
Title VII houses protections for employees against discrimination or harassment based on race, skin color, religion, sex and national origin, but it does not mention sexual orientation as a protected category. However, the commission argues that sexual orientation cannot be understood without reference to sex, therefore it falls under sex discrimination.
The EEOC has carried this interpretation of Title VII only in recent years. In December 2012, it adopted a strategic enforcement plan that included as an enforcement priority “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply.” The commission applied this priority in its July 2015 determination in Baldwin v. Foxx.