EEOC Files First Two Lawsuits In Federal Court Alleging Sexual Orientation Bias Under Title VII

Two lawsuits filed by the EEOC on March 1, 2016, appear to be part of the Commission's Strategic Enforcement Plan. Priorities of the plan include "Addressing Emerging and Developing Issues" such as "coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions." On a more granular level, the filings can be understood as an outgrowth of the EEOC's decision in the federal sector case Baldwin v. Dep't of Transp., Appeal No. 0120133080 (July 15, 2015).

In Baldwin, the EEOC held that Title VII's prohibition of sex discrimination includes sexual orientation discrimination because "discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. 'Sexual orientation' as a concept cannot be defined or understood without reference to sex."

The EEOC explained that:

An employee could show that the sexual orientation discrimination he or she experienced was sex discrimination because it involved treatment that would not have occurred but for the individual's sex; because it was based on the sex of the person(s) the individual associates with; and/or because it was premised on the fundamental sex stereotype, norm, or expectation that individuals should be attracted only to those of the opposite sex. [In a footnote, the EEOC noted that "there may be other theories for establishing sexual orientation discrimination as sex discrimination, on which we express no opinion."] Agencies should treat claims of sexual orientation discrimination as complaints of sex discrimination under Title VII and process such complaints through the ordinary Section 1614 process.

The two filings will allow the EEOC to test the persuasiveness of its current interpretation of Title VII's prohibition of sex discrimination, but it is unlikely that either action will clarify the ongoing jurisdictional split on this issue in federal courts. While the appellate circuits have thus far agreed that "Title VII...