Signaling its intent to pursue its viewpoint that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation (including transgender identity), the Equal Employment Opportunity Commission has taken several recent steps to advance its theory that Title VII’s statutory term “sex” has broad application within the meaning of the federal employment discrimination law. According to the EEOC, Title VII’s general prohibition against discrimination on the basis of sex encompasses more specific prohibitions on certain acts of sexual orientation discrimination under a sex stereotyping theory and prohibits employers from taking sex or gender, as well as perceptions regarding gender roles, into consideration when making employment decisions.
In recent weeks, the Commission has filed lawsuits against a funeral home in Michigan and an eye care clinic in Florida alleging unlawful discrimination against male-to-female transsexual employees. Additionally, the agency recently filed an amicus brief with the United States Court of Appeals for the Seventh Circuit (covering Illinois, Indiana and Wisconsin) asking the appellate court to reconsider a ruling earlier this year finding that Title VII does not bar sexual orientation discrimination based on the reasoning that while the law extends to a person’s gender, it does not extend to a person’s sexual orientation. In taking all these actions, the EEOC is suggesting it will be increasingly likely to litigate claims of alleged sexual orientation discrimination and process charges of discrimination under such a theory until and unless the Supreme Court rules that Title VII’s prohibition against discrimination on the basis of sex specifically excludes discrimination on the basis of sexual orientation.
What does this mean for employers? For many, it may not have much practical effect because some state or local laws already prohibit discrimination on the basis of sexual orientation and transgender identity. Many other employers already prohibit discrimination based on any identifying characteristics regardless of what federal or state laws apply to them, and this is certainly a good practice for employers to follow in all jurisdictions. Nevertheless, the EEOC’s actions signal that it will continue to view Title VII – the 50-year-old federal employment discrimination law – as a living and evolving statute broad enough to cover many theories of discrimination not specifically enumerated in the law in our ever-evolving sociopolitical world. As always, the EEOC’s actions serve as a good reminder for employers to approach all employment decisions with a clear focus on merit alone and document the legitimate reasons for all employment decisions.