EEOC at the Forefront of Sexual Orientation and Gender Identity Discrimination Claims

Last month, the Equal Employment Opportunity Commission (EEOC) distributed a memorandum reinforcing the agency’s position that discrimination based on sexual orientation, transgender status, and gender identity violates Title VII of the Civil Rights Act of 1964 (Title VII). Title VII prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Title VII applies to employers with 15 or more employees, employment agencies, labor organizations, and government agencies.

The EEOC’s position is that claims of discrimination based on sexual orientation, gender identity or transgender status violate Title VII’s prohibition against sex discrimination. In recent years, the agency has enforced a number of decisions to that effect. In addition, the agency has supported this position in court cases alleging Title VII discrimination based on impermissible sex-based norms, expectations and stereotypes. Evidence of discrimination can grounded in norms and expectations such as those regarding sexual attraction or manifested from degrading sex-based epithets.

The US Department of Labor, Office of Federal Contract Compliance Programs’ (OFCCP) recent rulemaking activity is consistent with the EEOC’s position. Several regulatory actions by the OFCCP applicable to federal contractors and subcontractors address barriers to equal employment opportunities on the basis of sexual orientation, gender identity and sex-based stereotypes, existing in disparate pay or benefits, sexual harassment and hostile work environments, and that impact pregnancy and family caregiving responsibilities.

Not all federal court decisions support the proposition that Title VII prohibits sexual orientation and gender identity discrimination. The Supreme Court may eventually make that decision. Alternatively, Congress might amend Title VII to expressly include new protected classes. Until then, employers should expect that the EEOC will continue to enforce claims based on sexual orientation, transgender status, and gender identity as prohibited forms of sex discrimination.

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