Authored by: Robert Bowes
The U.S. Equal Employment Opportunity Commission (“EEOC) has issued a groundbreaking ruling finding that Title VII of the Civil Rights Act, which prohibits employment discrimination “based on race, color, religion, sex and national origin,” also prohibits discrimination on the basis of sexual orientation.
Courts have previously ruled that Title VII does not cover discrimination based on sexual orientation because it is not explicitly mentioned in the law. The EEOC, however, found that “[s]exual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.” The EEOC argued that “[t]he question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. It is not.” The question, then, is the same as in any other Title VII sex discrimination case: “whether the employer has ‘relied on sex-based considerations’ or ‘take[n] gender into account’ when taking the challenged employment action.” The commission concluded that sexual orientation “cannot be defined or understood without reference to sex.”
The EEOC’s ruling expanding the scope of Title VII beyond the plain language of the law is not binding on the federal courts, but it is considered persuasive authority that courts may take into account. It will take a ruling by the United States Supreme Court (following lower court decisions) or legislative action if the EEOC’s ruling is to be fully realized nationwide. Nonetheless, employers should review and consider revising their policies to conform to the EEOC’s position, including their employment screening and harassment policies. Employers should also consider training decision-making and supervisory personnel in anti-harassment and anti-discriminatory policies and practices that include sexual orientation.
Please contact your KJK attorneys to discuss any questions concerning how best to avoid employment discrimination claims and how to create and support an inclusive workplace.