The EEOC has filed its first lawsuits accusing employers of gender bias for discriminating against employees on the basis of sexual orientation. The complaints are grounded in the theory that the protections in Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on sex, extend to sexual orientation because sexual-orientation discrimination is by nature bias because of sex. The EEOC filed separate suits against Scott Medical Health Center in the U.S. District Court for the Western District of Pennsylvania and against Pallet Companies in the U.S. District Court for the District of Maryland. The move signals that the agency is committed to aggressively pursuing this legal theory, which some view as a natural extension of Title VII's language and scope.
Although affording the protections of Title VII to lesbian, gay, bisexual, and transgender individuals has gained traction in some courts, the EEOC is seeking uniform acceptance of its interpretation of Title VII. According to the EEOC's Strategic Enforcement Plan for 2013-2016, confirming coverage of LGBT individuals under Title VII's sex-discrimination provisions is one of the agency's six national priorities.
A patchwork of laws currently exists at the state and local levels. Almost half of all states have laws prohibiting discrimination in the workplace based on a person's sexual orientation. Unlike most states in the northeast that consider sexual orientation a protected classification in both the public and private sectors, Pennsylvania law does not provide such broad protection for LGBT workers. However, many of its biggest cities, including Philadelphia and Pittsburgh, do have ordinances that prohibit discrimination in the workplace based on sexual orientation.
In anticipation of heightened scrutiny by the EEOC, we recommend that employers review their EEO policies and amend them where necessary to include LGBT workers. In addition, employers should consider updating their compliance systems as well as providing additional training for supervisors and managers.
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