The Equal Employment Opportunity Commission (“EEOC”) recently issued an opinion that sexual orientation discrimination is a form of sex discrimination, and therefore already prohibited by Title VII. California employees are explicitly protected from sexual orientation discrimination by state law. However, the EEOC’s ruling is significant because if federal courts follow the EEOC’s lead, all Americans may soon be protected from sexual orientation discrimination in the workplace.
The EEOC opinion reasoned that sexual orientation discrimination is inherently a prohibited sex-based consideration. “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. A man is referred to as ‘gay’ if he is physically and/or emotionally attracted to other men. A woman is referred to as ‘lesbian’ if she is physically and/or emotionally attracted to other women. Someone is referred to as ‘heterosexual’ or ‘straight’ if he or she is physically and/or emotionally attracted to someone of the opposite sex.”
The opinion also reasoned that sexual orientation discrimination is a form of discrimination by association similar to Title VII’s protection of those in an interracial marriage or friendship. The law prohibits treating employees differently for associating with a person of the same sex, such as a gay man who associates with or dates men.
Finally, the EEOC’s opinion cited to a long line of cases that prohibit discrimination based on gender stereotypes. It noted that adverse treatment of others based on appearance, mannerisms, or conduct that is perceived as insufficiently “masculine” or “feminine” is a form of sex discrimination that is rooted in heterosexually defined gender norms.
Although EEOC opinions are not binding, federal courts may consider them for guidance. It is possible then that the courts may adopt the EEOC’s reasoning and provide protection to millions of Americans without having to pass legislation through Congress.