United States: EEOC Seeks To Expand Reach Of Sexual Orientation Claims

A new wave of litigation may result in sexual orientation discrimination being prohibited at most workplaces across the country. The last month has seen a historic series of lawsuits filed by the Equal Employment Opportunity Commission (EEOC) addressing this issue head on, arguing that existing federal law covers this type of employment discrimination.


Title VII is the main federal anti-discrimination statute covering most private employers with 15 or more workers. It protects against, among other things, gender discrimination in the workplace. However, the federal civil rights statute does not explicitly include sexual orientation as a protected category.

Although many state and local laws have already done so, federal courts have yet to extend Title VII's protection in the private sector to sexual orientation discrimination. Laws establishing such protections have been introduced in Congress, but, to date, none have passed. 

EEOC's Initial Attempts To Broaden Coverage

In 2013, the EEOC announced that establishing protections relating to sexual orientation would be one of its major priorities. Since then, the EEOC has been accepting and investigating charges of discrimination alleging that employees were discriminated against because of their sexual orientation.

Since the EEOC and some state and local laws protect against workplace sexual orientation discrimination, but federal courts have not held that this is protected under Title VII, it is easy to see how employers can be confused as to their obligations.

Groundbreaking Lawsuits

In a coordinated series of actions that may help to standardize the law, the EEOC filed two lawsuits in federal court on March 1, 2016, claiming that Title VII protects employees from discrimination based on their sexual orientation.

In a lawsuit filed in the Western District of Pennsylvania, EEOC v. Scott Medical Center, the agency claimed that the employer violated Title VII when a male manager allegedly made offensive remarks to a gay male employee regarding that employee's sexual orientation, including derogatory remarks about his sex life and choice of partner.

In the other lawsuit, filed in the District Court of Maryland, EEOC v. Pallet Companies d/b/a/ IFCO Systems, NA Inc., the EEOC claimed that the employer likewise violated Title VII when a supervisor made comments regarding a gay female employee's sexual orientation, including comments regarding the manager's intention to "turn her back into a woman" and quotations from the Bible that the supervisor believed condemned homosexuality. 

Because these cases were only very recently filed, it may be some time before the courts make rulings on whether Title VII indeed protects against sexual orientation discrimination in the workplace. It is also possible that these cases will need to wind their way up to appellate courts, if not the U.S. Supreme Court, before the picture is clear.

What Have Other Courts Said?

Previously, a number of federal courts have recognized that Title VII's prohibition against discrimination on the basis of sex extends to situations in which employees are discriminated against because they do not comport with traditional gender stereotypes. For example, several courts have held that Title VII's prohibition against gender discrimination applies when a female employee is harassed for being too "masculine," among other similar situations when an employee is discriminated against for acting contrary to gender norms.  

This rationale has also been used to find that employers violate Title VII if they discriminate against transgender employees. In making these rulings, federal courts have reasoned that discriminating against an employee who, in an employer's view, does not conform to traditional gender stereotypes violates Title VII's prohibition against sex discrimination.

Courts may not have to make too much of a jump from this rationale in extending Title VII protections to workers' sexual orientation. Many courts have even alluded to a seeming inconsistency in not protecting an employee's sexual orientation that deviates from traditional gender norms when other aspects of an employee's behavior that deviate from traditional gender norms are already protected.

Signs Point To A Broader Standard

The national trend likewise seems to encourage protecting individuals against sexual orientation discrimination. One federal court has already held that federal employers may not discriminate against their employees based on sexual orientation (though this decision does not apply to state or private employees). 

Further, in last year's Obergefell v. Hodges decision, the U.S. Supreme Court held that same-sex couples could not be denied the right to marry. While this holding was based on Constitutional and not Title VII protections, it exemplifies the recent trend towards protecting individuals against discrimination based upon their sexual orientation.

Ultimately, although there seems to be an inconsistency as to whether you could be sued under federal law by employees who believe you took adverse action against them based on their sexual orientation, it seems likely that the law will generally move towards prohibiting such actions, perhaps sooner rather than later. 

Unless you want to be on the receiving end of one of these leading-edge lawsuits, it would be wise to promote policies protecting against discrimination or harassment based on an employee's sexual orientation, just as you already protect against discrimination based on an employee's gender, race, ethnicity, etc. Further, in addition to being proactive in conforming to law that could soon be applicable, preventing discrimination of any kind in the workplace is generally a good business practice that promotes positive employee morale.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.