Last week, the EEOC released a historic decision on same-sex employment discrimination rights [pdf]. The EEOC confirmed that, in its opinion, Title VII expressly bars discrimination based on sexual orientation. When you couple this decision with an earlier 2012 decision on transgender workplace rights, the EEOC has done what Congress has thus far refused—to re-write Title VII to include express prohibitions against LGBT discrimination.
How does the EEOC reason that allegations of sexual-orientation discrimination necessarily state a claim of Title-VII-protected sex discrimination?
When an employee raises a claim of sexual orientation discrimination as sex discrimination under Tide VII, the question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. It is not…. [W]e conclude that sexual orientation is inherently a “sex-based ccmsideration” and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII. A complaintant alleging that an agency took his or her sexual orientation into account in an employment action necessarily alleges that the agency took his or her sex into account….
Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex….
Sexual orientation discrimination is also sex discrimination because it is associational discrimination on the basis of sex. That is, an employee alleging discrimination on the basis of sexual orientation is alleging that his or her employer took his or her sex into account by treating him or her differently for associating with a person of the same sex.
What does this mean? ENDA or no ENDA, the EEOC will accept charges alleging LGBT discrimination under Title VII’s sex-discrimination prohibition. Indeed, the agency accepted more than 1,000 of these charges last year alone.
While neither nor courts have approved this broad stroke, now is as good a time as any to consider updating to your employment policies to reflect this paradigm shift.